In this CRA Insights, we update the Rule 702 Decision trends in last year’s Insights with 2022 data. We also provide three examples of specific challenges in 2022 Rule 702 Decisions.
To recognize a recent clarifying amendment to Federal Rules of Evidence Rule 702 that was recently approved by the Supreme Court and will go into effect later this year, this newsletter will reference decisions on motions to exclude expert testimony as Rule 702 Decisions, instead of Daubert as used previously in these Insights newsletters and the legal community. The amended language of Rule 702, redlined compared to the previous language, is below:
“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:
- 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;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
Rule 702 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.
The number of Rule 702 Decisions available to analyze in 2022 increased to 150 decisions, which was the highest number of decisions in any year during the 2015-2022 time period analyzed in this newsletter. 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 41%, down from 49% in 2021 and approximately the same rate as 2020, as shown in Table A below.
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 2022, 85% of decisions included a ruling on reliability or relevance; 9%, a ruling on qualifications; and 40%, 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 39% over the entire period. As shown in Table B below, when limiting Rule 702 Decisions to 2022 only, challenges to an expert’s qualifications were the most successful, with an exclusion rate of 43%.
In 2022, courts in the Eastern District of Texas, District of Delaware, Northern District of California, and Central District of California produced approximately 60% of Rule 702 Decisions, similar to 2021 but down from about 70% in recent years. Unsurprisingly, the four judges with the most Rule 702 Decisions are located in the Eastern District of Texas and District of Delaware. Between 2015 and 2022, these four judges issued 97, 71, 66, and 65 total decisions, respectively, or an average of between approximately 8 and 12 decisions per year. While these four judges ruled on a significant number of decisions, the remaining 206 judges with decisions during this time period each issued 20 or less decisions, with the majority issuing one or two decisions. Table D below shows the total number of decisions from 2015 to 2022 for each of the 210 judges that issued decisions during this time period.
In this Insights we will summarize three challenges in 2022 Rule 702 Decisions.