In a mixed ruling on evidentiary exclusions and damages methodology, the US Court of Appeals for the Federal Circuit affirmed in part, reversed in part, vacated in part, and remanded a district court’s decision that excluded...more
In an en banc decision in EcoFactor, Inc. v. Google LLC, the US Court of Appeals for the Federal Circuit concluded that the district court abused its discretion by admitting testimony from a damages expert that a lump-sum...more
In a significant decision for plaintiffs litigating traumatic brain injury (TBI) claims, the U.S. District Court for the Northern District of Oklahoma has denied a defense motion to exclude expert testimony based on diffusion...more
Identifying junk science is merely the first step of the battle when considering argument approach and courtroom strategy. With this in mind, the main goals are to keep junk science out of the courtroom and, of course, win...more
The district court erred by admitting untimely expert testimony on noninfringement and by refusing to grant a new trial after the jury found noninfringement. Trudell Medical International (“Trudell”) sued D R Burton...more
Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the opinions of experts who may present evidence at trial. If the disclosures are inadequate, Rule 37(c) requires exclusion of the opinions “unless the...more
Federal Rules of Evidence 701 and 702 govern the admissibility of lay and expert opinion testimony, respectively, in federal courts. Rule 701(c) helps paint the line between the two, providing that an opinion “based on...more
It has now been over six months since the amendment to Federal Rule of Evidence 702 regarding the admissibility of expert testimony went into effect on Dec. 1, 2023....more
In explaining the December 2023 amendments to Federal Rule of Evidence 702, the Advisory Committee called out several ways in which “many courts” had “incorrectly” applied Rule 702 and failed to adequately discharge their...more
Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable...more
The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change. As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc.,...more
The federal rule of evidence governing expert testimony — Rule 702 — just saw its most significant change in almost 25 years. The new Rule 702, which went into effect Dec. 1, 2023, gives litigants important new tools for...more
On December 1, 2023, Federal Rule of Evidence 702 was amended to “clarify and emphasize” that, before expert witness testimony can be admitted, the proponent must satisfy all the rule’s requirements by a preponderance of the...more
Effective December 1, 2023, Federal Rule of Evidence 702 has been amended to address the standard for admission of expert opinion testimony. The amendments confirm that the trial judge, in its gatekeeping role, must determine...more
The amended language of Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, takes effect on December 1, 2023. Even though the Advisory Committee comment stresses that it...more
Fun fact: There are 23 holidays that can be celebrated today, December 1st. Some, like Rosa Parks Day and World AIDS Day, are solemn and serious. Others are silly and fun, like National Peppermint Bark Day and National...more
Rule 702 of the Federal Rules of Evidence governs expert witness testimony in federal courts. On April 24, 2023, the United States Supreme Court approved an amendment to Rule 702 (the “Amendment”), which will go into effect...more
On June 7, 2022, the Judicial Conference Committee on Rules of Practice and Procedure approved amendments to several of the Federal Rules of Evidence—including Rule 702, which governs the admissibility of expert witness...more
Federal Rule of Evidence (FRE) 702, which governs expert testimony in federal court, is getting a facelift. The amended FRE 702 goes into effect later this year. In this Update, we review what has changed, as well as...more
If you don’t know where a line is, you can’t say whether someone has crossed it. That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where...more
Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory...more
Loss of productivity damages are commonly estimated using a “measured mile” analysis, which compares unimpacted construction work to work which has been disrupted to determine the cost impact of the disruption. Such analyses...more
The Judicial Conference of the United States’ Committee on Rules of Practice and Procedure seems poised to advance proposed amendments to Federal Rule of Evidence 702, after the Advisory Committee on Evidence unanimously...more
It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible...more