In Conservation Council for Hawaii v. Hawaiian Electric Company, Inc. (D. Haw. Apr. 24, 2026), a federal district court in Hawai’i applied Federal Rule of Evidence 702 regarding the admissibility of expert testimony in the context of a lawsuit alleging unauthorized “take” of species protected under the Endangered Species Act (ESA). The decision reflects the effort of the trial judge to balance the gatekeeping function of the judiciary, which is intended to prevent parties from blurring the line between lay and expert testimony, and the notion that parties are entitled to present relevant information to the factfinder (whether that is the judge or a jury).
At the center of most disputes over whether a person is liable for the unauthorized take of a protected species under the ESA is causation. In this case, plaintiffs allege that Maui County’s streetlights “take” protected seabirds by attracting and disorienting them, leading to collisions or grounding events known as “fallout.”
