TL;DR:
In United States v Barnett Fung, the Seventh Circuit held the district court did not abuse its discretion by admitting lay testimony from a pharmacist about routine observations in a prescription dispensing case. The decision, issued July 24, 2026, reaffirmed that lay testimony can describe perceptions without turning into expert opinion, and it clarified the ongoing tension between Federal Rules of Evidence 701 and 702. For trial teams, the ruling reinforces practical guidance on foundation, limiting instructions, and what constitutes permissible lay testimony when professionals testify about what they observed rather than what they conclude. Objection Academy offers targeted drills and practice scenarios to help litigators navigate lay versus expert boundaries and preserve trial-readiness in the wake of this decision. (law.justia.com)
What happened
Dr. Barnett Fung challenged the district court’s handling of a pharmacist’s testimony in a complex prescription-dispensing case. The district court allowed Nguyen, a pharmacist, to testify about his observations and actions, framing the testimony as lay testimony under Federal Rules of Evidence 701. Fung argued the testimony crossed into expert territory or should have been excluded under Rule 403. The Seventh Circuit unanimously rejected these challenges, holding that the district court acted within its discretion by admitting Nguyen’s lay testimony because it was based on Nguyen’s personal observations and did not advance opinions rooted in specialized medical knowledge. The court emphasized that the line between lay and expert testimony is not always sharp, and that lay testimony grounded in common sense can be admissible even when the witness holds professional credentials. The case also addressed the district court’s handling of a separate remark by another witness, ruling that the isolated remark did not require a mistrial. The Seventh Circuit’s decision was issued on July 24, 2026. (law.justia.com)
Key passages from the opinion describe the analytical framework: lay testimony must be rationally based on the witness’s perception, helpful to the jury, and not rely on specialized knowledge within Rule 702. The court reiterated that a lay witness’s expertise in one area does not automatically transform all testimony into expert opinion; instead, the content of the testimony determines its classification under Rule 701 and 702. The court also explained that the testimony at issue did not require the pharmacist to render a professional standard-of-care judgment, and the district court’s limiting instructions helped keep Nguyen’s testimony within proper boundaries. The decision provides a concrete, rule-based confirmation that routine observations by professionals can remain lay testimony so long as the testimony stays grounded in perception rather than diagnosis or generalized conclusions. (law.justia.com)
Why this matters for trial teams
Clarified boundary between lay and expert testimony: The Fung decision reinforces that a witness with professional credentials can offer lay testimony describing perceptions and actions without crossing into expert opinion, provided the content is rooted in personal observation and not in specialized medical conclusions. This helps trial teams plan who to call as lay witnesses and how to frame their testimony to stay within Rule 701. (law.justia.com)
Emphasized the role of careful limiting instructions and foundation: The court upheld the district court’s approach to keep the pharmacist from opining about standards or causation beyond his direct observations. Practitioners should anticipate requests for limiting instructions and be prepared to tailor foundation questions that anchor testimony to perception, memory, and routine processes. (law.justia.com)
Reassurance on excluding or curbing stray prejudicial remarks: Fung’s treatment of a stray remark during trial underscores that isolated comments do not necessarily derail a trial if they are not repeated or not connected to the conviction’s core issues. This underscores the importance of immediate, precise objections and, when appropriate, curative instructions. (law.justia.com)
Practical impact across criminal and civil settings: The decision applies broadly to cases where a professional witness describes non-technical, perception-based observations. It provides a blueprint for preserving admissibility while avoiding inadvertent expertisation of lay testimony, a common issue in medicine, pharmacy, engineering, and other fields. Trial teams can use Fung as a reference point when evaluating potential lay witnesses who also have technical credentials. (media.ca7.uscourts.gov)
Practical takeaways for objection practice
Before trial, map each potential lay witness’s expected testimony to Rule 701’s perception-based framework. If the witness will describe observations, actions, or events rather than offering medical diagnoses or conclusions, treat it as potential lay testimony and prepare foundation questions accordingly. Fung underscores that the content matters more than professional status. (law.justia.com)
Prepare targeted objections to convert borderline testimony into permissible lay testimony or to realign it with expert testimony when necessary. If a witness begins to offer conclusions that require specialized knowledge, have clear, ready objections and a plan for substituting or redirecting to perception-based descriptions. Fung highlights the judge’s gatekeeping role and the opportunity for timely objections. (law.justia.com)
Plan for limiting instructions and cross-examination strategies: When a lay witness is connected to a profession, a strong plan for limiting the witness to non-technical observations can prevent inadvertent escalation into expert opinion. Fung confirms that proper limiting instructions can preserve admissibility. (law.justia.com)
Use trial simulations to rehearse lay versus expert objections: Objection Academy’s FRE-focused training and objection drills are highly relevant for practicing these exact scenarios. The platform emphasizes building the nerve and speed to spot and frame objections in real time, helping trial teams apply Fung’s lessons under pressure. See the FRE reference and training resources on Objection Academy’s site for practical drills and fast-reference tools. (objectionacademy.com)
Objection Academy in practice
As this ruling tightens the line between lay and expert testimony in high-stakes proceedings, trial teams benefit from concrete, practice-ready resources to implement Fung’s lessons. Objection Academy offers a robust Federal Rules of Evidence reference library paired with objection drills and courtroom simulations designed to sharpen the instinct to keep testimony within Rule 701 boundaries. This combination enables litigators to trial-test their approach in advance, ensuring the team can efficiently defend or challenge lay testimony without drifting into expert opinion. In addition, OA’s training materials and related articles help practitioners stay current with evolving evidentiary standards as illustrated by Fung’s timely update. (objectionacademy.com)
What to do next
If a case involves professionals testifying about their perceptions of events or routine actions, use Fung as a precedent to craft a precise lay-witness strategy. Build a clear foundation for perception-based testimony and prepare to lodge Rule 701/403 objections if testimony threatens to morph into expert opinion.
Monitor subsequent Seventh Circuit and other circuits for refinements on the boundaries between lay and expert testimony, as well as any procedural holds for similar fact patterns. Fung stands as a concrete, recent example illustrating how courts apply Rule 701 in real trials. (media.ca7.uscourts.gov)
Leverage Objection Academy’s resources to rehearse these exact scenarios, including drills focused on foundation, relevance, and the proper scope of lay testimony, to ensure courtroom readiness when similar issues arise in due course. (objectionacademy.com)
Sources
- United States v Barnett Fung, No. 25-1605 (7th Cir. 2026), Jul. 24, 2026. Admissibility of lay testimony by a pharmacist; boundaries between Rule 701 and 702; isolated remarks and mistrial concerns. (law.justia.com)
- United States Court of Appeals for the Seventh Circuit, Opinions Archive, United States v Barnett Fung, 7th Cir. July 24, 2026 (RSS/official opinion). (media.ca7.uscourts.gov)
Note: Objection Academy resources cited above provide practical training aligned with the current evidentiary landscape, including foundational objection practice and real-world trial simulations relevant to lay and expert testimony boundaries. (objectionacademy.com)