News & Analysis as of

Daubert Standards

Fenwick & West LLP

Key Federal Circuit Patent Rulings Impacting Your Business…

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In EcoFactor, Inc. v. Google LLC, the en banc United States Court of Appeals for the Federal Circuit reversed a district court’s denial of a new trial on damages because EcoFactor’s expert’s opinion was unreliable under Fed....more

Hudnell Law Group

Federal Circuit Enforces Gatekeeping Role in Patent Damages Testimony

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On May 21, 2025, the United States Court of Appeals for the Federal Circuit, sitting en banc, reversed a $20 million damages award against Google LLC in a patent infringement dispute with EcoFactor, Inc. EcoFactor, Inc. v....more

Rumberger | Kirk

New AI Rule, Old Standard: Proposed Federal Rule of Evidence 707 Aims to Apply Daubert Standard to AI-Generated Evidence

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In response to the rapidly increasing presence of AI-generated outputs in litigation, on June 10, 2025, the U.S. Judicial Conference’s Advisory Committee on Evidence Rules approved for publication for public comment a...more

White & Case LLP

Federal Circuit Tightens Standard for Patent Damages Experts

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On May 21, 2025, the Federal Circuit issued an en banc decision in EcoFactor, Inc. v. Google LLC, highlighting the critical gatekeeping role of district courts under Federal Rule of Evidence 702 and Daubert standards,...more

McDermott Will & Emery

En Banc Federal Circuit Cools Damages Award Because of Improper Expert Testimony

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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

Schwabe, Williamson & Wyatt PC

Latest Federal Court Cases: EcoFactor, Inc. v. Google LLC

EcoFactor, Inc. v. Google LLC, Appeal No. 2023-1101 (Fed. Cir. May 21, 2025) In its first en banc decision of the year, the Federal Circuit reversed a district court’s admission of expert testimony concerning damages,...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit in EcoFactor, Inc. v. Google LLC Probes the Limits for Gatekeeping Damages Testimony

Last week, in EcoFactor, Inc. v. Google LLC, the Federal Circuit issued its first en banc decision in a utility patent case in several years. The case involves the gatekeeping function of district courts vis-à-vis expert...more

Husch Blackwell LLP

A Check on Experts in the Talcum Powder World

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On February 7, 2025, Judge Walker, sitting in the United States District Court for the Eastern District of Virginia, ruled that the Plaintiff (a subsidiary of a parent company engaged in nationwide talcum powder litigation)...more

Stark & Stark

Court Affirms Admissibility of DTI-Based TBI Diagnosis in Oklahoma Federal Case

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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

Goodell, DeVries, Leech & Dann, LLP

Appellate Court Undermines Rochkind by Conflating Rule 5-702 and Rule 2-501

[DISCLOSURE: Although I do not represent the defendant hospital in Jabbi v. Adventist Healthcare, Inc. No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported), I often represent Maryland hospitals seeking to exclude causation...more

Robinson Bradshaw

Old Dogs and New Tricks: Supreme Court Denies Certiorari in Ninth Circuit Case Allowing Reliance on Inadmissible Expert Work for...

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Earlier this month, the Supreme Court declined to hear an appeal from the Ninth Circuit’s decision in Lytle v. Nutramax Laboratories, Inc. affirming the certification of a class of owners of elderly dogs, alleging that the...more

Proskauer - The Patent Playbook

A Looming En Banc Decision with Potentially Damaging Consequences – EcoFactor v. Google

For anyone following the evolving admissibility standards for expert opinions relating to patent damages, the EcoFactor v. Google case is one to watch. In December 2024, the Federal Circuit granted Google’s petition for...more

Knobbe Martens

New Trial Granted Because “Nearly All” of the Defendant’s Noninfringement Evidence Was Untimely

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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

Montgomery McCracken

Recent Third Circuit Opinion Reinforces That Daubert Requires Courts to Examine the Data Underlying an Expert’s Analysis

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February 11, 2025 Types : Alerts Meta Platforms, Inc. recently defeated certification of a class of consumers who claim the company lied about its user privacy safeguards and violated antitrust laws. ...more

Carlton Fields

Florida Appeals Court Decisions: Week of January 20-24, 2025

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U.S. Eleventh Circuit Court of Appeals - Isaac Indus v. PDVSA - personal jurisdiction, foreign sovereign immunity, breach of contract - USA v. Schwarzbaum - foreign bank accounts, IRS form FBAR, penalties, Excessive...more

Faegre Drinker Biddle & Reath LLP

Foundation, Not Façade — The Fifth Circuit Affirms the Proper Basis Requirement for Admissibility of Expert Opinions in Newsome v....

In a toxic tort case, plaintiffs must establish general causation. If a substance is incapable of causing the type of injury plaintiff claims, then it certainly didn’t cause theirs. Under Texas law, toxic tort plaintiffs must...more

Harris Beach Murtha PLLC

Medical and Life Sciences: New York 2024 Year in Review

From medical devices to OTC drugs, preemption to expert preclusion, New York state and federal courts issued decisions in 2024 which further shaped the landscape in the medical and life sciences legal world. To prepare the...more

Kilpatrick

Sixth Circuit vacates certification of ten statewide classes against Nissan based on district court’s failure to ascertain common...

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Takeaway: The Sixth Circuit recently emphasized how demanding Rule 23’s commonality requirement can be. In In re Nissan North America, Inc. Litigation, --- F.4th ----, No. 23-5950, 2024 WL 4864339 (6th Cir. Nov. 22, 2024),...more

Faegre Drinker Biddle & Reath LLP

Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That...

Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are...more

Faegre Drinker Biddle & Reath LLP

To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging

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

Cimplifi

How Bias Can Influence AI

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One of the biggest barriers to using AI successfully is bias, which is one of the terms we defined last time, as follows: Bias, in a general context, refers to a predisposition or inclination towards a particular viewpoint,...more

Faegre Drinker Biddle & Reath LLP

Same Song, Different Verse — Causation Experts for Second Group of Bellwether Plaintiffs Excluded for Same Reason as First Group’s...

Multidistrict litigation is meant to “promote the just and efficient conduct” of actions “involving one or more common questions of fact” by transferring those actions to a single district court “for coordinated or...more

Faegre Drinker Biddle & Reath LLP

Fifth Circuit Asks the Right Questions, Affirms Summary Judgment on Plaintiffs’ Herbicide Claims as Untimely and Lacking...

As Nobel laureate Richard Feynman once observed, “[w]isdom is knowing when to ask the right questions.” A related proposition is that wise jurists know how to identify and focus on the right questions. Motion practice can...more

Carlton Fields

Florida Appeals Court Decisions: Week of October 14-18, 2024

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U.S. Eleventh Circuit Court of Appeals - Siples v. BR Exploration – Daubert, causation testimony, toxic exposure - Lozman v. Riviera Bch – eminent domain, comprehensive plan, ripeness - Hidroelectrica Santa Rita v....more

Goldberg Segalla

Rhode Island Court Denies and Grants, in Part, Joint Defense Motion to Exclude Plaintiff’s Experts

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Court: Superior Court of Rhode Island, Providence - In this asbestos action, plaintiffs claim decedent, Bonnie J. Bonito, developed mesothelioma from exposure to asbestos from laundering her late ex-husband’s work clothing...more

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