The changes to Federal Rules of Evidence 702, now six months old, have brought significant impacts on expert testimony admissibility. In this article, Daniel Callaway and Tim Horgan-Kobelski of FBM analyze the effects so far.
As highlighted by the authors, the consequences of a successful Daubert motion can be pivotal in shaping the course of a trial.
In patent cases, the rule changes are expected to have a limited impact on Daubert challenges for experts providing opinions on infringement and validity from fact discovery evidence and their domain expertise.
However, challenges may intensify for experts relying on testing, measurement, or simulation. Patent damages experts might also encounter an increase in Daubert motions.
Under the new FRE 702 language, courts are prompted to scrutinize questionable expert opinions for admissibility head-on, rather than stating that such issues go to the weight of testimony.
To survive the inevitable Daubert challenge(s), expert witnesses must ensure the reliability and methodological soundness of each opinion.
Leave a Reply