Patent litigators commonly utilize experts to explain complex and technical issues of patent invalidity, patent infringement, and damages to the jury. Expert testimony is often critical in swaying a jury, so parties often file motions to disqualify experts from the opposing side. Expert testimony is governed by the Federal Rules of Evidence (FRE) which requires that expert testimony meet certain standards of reliability. In May 2022, the Advisory Committee on Evidence Rules (“Advisory Committee”) unanimously approved proposed amendments to Rule 702 of the FRE.¹  The amendments emphasize “preponderance of evidence” as the proper evidentiary standard and highlight the trial court’s role as gatekeeper for expert testimony. The Supreme Court is expected to review the amendments this fall, and if approved, the changes will take effect in December 2023. 

The admissibility of expert testimony is governed by Rule 702, which states that expert testimony must (a) help the trier of fact understand the evidence or determined a fact at issue, (b) be based on sufficient facts or data, (c) be based on reliable principles and methods, and (d) be based on principles and methods reliably applied to facts of the case. The purpose of Rule 702 is to ensure that only reliable expert testimony is allowed at trial. The proposed amendments to Rule 702 are below (with underlines to indicate added language and strikethroughs to indicate deleted language). 

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The Committee Note indicates that Rule 702 was amended with two goals in mind.²  First, the amended rules clarify the evidentiary standard — that is, the admissibility of expert testimony must be established by a preponderance of evidence, or “more likely than not.” In particular, the Committee notes that “emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule.”³  In recent years, many courts have taken a highly liberal approach to admitting expert testimony, taking a view that there is a presumption of admissibility. For instance, the Second Circuit has stated “the Court's role as a gatekeeper is tempered by the liberal thrust of the Federal Rules of Evidence and the presumption of admissibility” and “Under Daubert, expert testimony should be excluded only if it is speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith.”⁴  The Fifth Circuit has taken a similar, liberal view towards admissibility, stating “As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.”⁵  The proposed amendments to Rule 702 emphasize that expert testimony should not be presumed admissible. Rather, the proponent must demonstrate, according to a preponderance of evidence standard, that the expert’s methodology and principle is reliable and the expert reliably applied the methodology and principle to the facts of the case. 

Next, the amendments to Rule 702 emphasize the court’s gatekeeping role in admitting expert testimony. In particular, the Advisory Committee states “a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert.” This is likely in response to courts commonly letting in expert testimony under a presumption of admissibility and instructing jurors to assign a weight to the expert testimony, rather than scrutinizing the admissibility of the testimony. For example, district courts in the Eastern District of Texas have stated, “As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.”⁶ In fact, the Advisory Committee noted, “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”⁷  Thus, the amended Rule 702 impels courts to assess the reliability of the expert testimony rather than delegating the issue to the jury as a question of the weight to assign to the testimony. 

Status of the amendments

The amendments to Rule 702 were unanimously approved in May 2022 by the Advisory Committee.⁸  Next, the amendments are expected to be reviewed by the Supreme Court in the fall of 2022, and if approved, the amendments will take effect on December 1, 2023. 

Impact to patent litigation

Patent infringement suits often involve complex technical issues, and experts are often brought in to explain complex issues to juries. In fact, patent litigators commonly use experts to testify on issues of validity, infringement, and damages. The amendments to Rule 702 will impact how patent litigators choose experts and how they challenge experts from the opposing side. For example, litigators should no longer presume their experts’ testimony will be admissible at trial. Instead, litigators should be prepared to defend the qualifications of their experts and the methodologies the expert uses. In the same vein, litigators may use Daubert motions to challenge experts on the opposing side and disqualify them before trial. Overall, patent litigators can expect more battles over the admissibility of expert testimony to be fought before trial.

---

¹ Report of the Advisory Comm. on Evidence Rules (May 15, 2022) [https://www.uscourts.gov/rules-policies/archives/committee-reports/advisory-committee-evidence-rules-may-2022].
² Comm. on Rules of Prac. of Proc., Agenda Book 892–95 (June 7, 2022) [https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_final.pdf].
³ Id.
⁴ Feliciano v. CoreLogic Saferent, LLC, No. 17 CIV. 5507 (AKH), 2020 WL 6205689, at *2 (S.D.N.Y. June 11, 2020) (internal citations and quotation marks omitted).
⁵ United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019), as revised (Aug. 9, 2019) (internal citations and quotation marks omitted).
⁶ See WorldVentures Holdings, LLC v. ARIIX, LLC, No. 418CV00393ALMKPJ, 2019 WL 6037989, at *3 (E.D. Tex. July 31, 2019) and Innovation Scis., LLC v. Amazon.com, Inc., No. 4:18-CV-474, 2020 WL 4201884, at *2 (E.D. Tex. July 22, 2020) (internal citations and quotation marks omitted).
⁷ Comm. on Rules of Prac. of Proc., supra note 2. 
⁸ Report of the Advisory Comm. on Evidence Rules, supra note 1.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.