In this Insights, we update the Daubert Decision trends in last year’s Insights with 2021 data. Daubert Decision trends are based on our review of available court decisions concerning damages experts in patent infringement matters in US districts courts that have sufficient information for analysis. We also provide three examples of specific challenges in 2021 Daubert Decisions.
The number of Daubert Decisions available to analyze in 2021 remained relatively constant with 127 decisions. The overall exclusion rate in such decisions—where the court either granted or partially granted a motion to exclude or limit a damages expert’s testimony—was approximately 50%, up from 40% in 2020 and the highest rate since this study began in 2015.
Decisions regarding challenges to the reliability or relevance of the damages expert’s methodology, including in determining lost profits or a reasonable royalty, continued to be the most prevalent. In 2021, 72% of decisions included a ruling on reliability or relevance; 8%, a ruling on qualifications; and 33%, a ruling on other topics such as disclosure issues, missed deadlines, and Rule 403 concerns. Challenges to these other topics have historically been the most successful, with an exclusion rate of approximately 40% over the entire period.
In 2021, courts in the Eastern District of Texas, District of Delaware, Northern District of California, and Central District of California produced approximately 61% of Daubert Decisions, down from about 70% in recent years. Northern District of California decisions increased over the past year, from 10 decisions in 2020 (8% of the total) to 18 decisions in 2021 (14% of the total)—almost back to 2015 levels of 22 decisions (15% of the total). On the other hand, Central District of California decisions decreased from 17 decisions in 2020 (14% of the total) to 1 decision in 2021 (0.8% of the total).
Among these four courts, the Central District of California continued to have the highest overall exclusion rate, over 60%. Of the 12 courts with at least 10 decisions from 2015 to 2021, the Northern District of California and the Northern District of Illinois were the only other courts with overall exclusion rates over 50%.
In this Insights we summarize three challenges in 2021 Daubert Decisions.