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
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
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
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
Precedential and Key Federal Circuit Opinions - WISCONSIN ALUMNI RESEARCH FOUNDATION v. APPLE INC. [OPINION] (2022-1884, 8/28/2024) (Prost, Taranto, and Chen) - Prost, J. The Court affirmed two final judgments of the...more
As patent practitioners know, Daubert motions can be some of the most hotly contested and pivotal motions in the life of a patent case. These motions are used to exclude testimony from an opponent's expert witness, usually on...more
In December 2023, back when the ink was still drying on the amendments to Federal Rule of Evidence 702, the Southern District of New York excluded all five general causation experts proffered by plaintiffs in the In re...more
A recent decision by Judge Novak in a securities case provides some helpful reminders on expert witness practice, particularly in commercial litigation, in the EDVA....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
Expert testimony is the tool that enables litigators to elucidate concepts that require scientific, technical or specialized knowledge. However, a proponent cannot introduce expert testimony without demonstrating under F.R.E....more
On November 15, 2023, the New Jersey Supreme Court released its decision on the much anticipated issue of whether Drug Recognition Expert (DRE) testimony is admissible under New Jersey Rule of Evidence 702. The Court...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
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
Discovery deadlines exist for a reason. Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a...more
On opening an opinion, lawyers habitually roll their eyes when they see a table of contents. Even more so when they learn the opinion is over 300 pages. The MDL order granting defense motions to exclude experts and for...more
Another favorable DTI decision has been made in Meadors v. D’Agostino, a case from the United States District Court, Middle District of Louisiana (October 29, 2020). This case arose out of a car crash where the...more
Peer-reviewed literature can be a powerful tool in attacking an opposing expert’s opinions. A solid, on-point article can do more than merely satisfy several of the so-called Daubert factors for assessing reliability – by...more
United States District Court for the Eastern District of Louisiana, July 20, 2022 - In this asbestos action, decedent Callen Cortez was diagnosed with mesothelioma following occupational and take-home exposure to...more
New changes to Federal Rule of Evidence 702 will clarify the courts’ responsibility to determine the admissibility of expert testimony. Forthcoming amendments to FRE 702 will promote uniformity in application of the Rule...more
Federal Rule of Evidence 702—Testimony by Expert Witnesses—was promulgated in 1975 when Congress first enacted the Federal Rules of Evidence. Original Rule 702 simply stated that “[i]f scientific, technical, or other...more
Expert testimony is often critical to establish a claim or defense. Expert testimony is allowed where scientific, technical, or other specialized knowledge will assist the judge or jury to understand the evidence in a case...more
While we all rely on Google or other internet search engines to find and absorb information quickly these days, a recent decision in the Central District of Illinois highlights the problems for expert witnesses relying on...more
Under the now widely-adopted Daubert standard, courts evaluate expert testimony based on the principles and methodology underlying the expert witness’s opinion. Admissibility of expert testimony is not governed by whether the...more
Federal Judge Robert J. Hemphill defined an expert witness as “a man you pay to say your way.” When those words were spoken in 1978, the venerable Frye standard, enunciated in 1923, governed the admissibility of expert...more