Olen L. York, III, JD, LLM
Assistant Professor
Brad D. Smith Schools of Business
Lewis College of Business
Marshall University
Susan W. Lanham, PhD, MAFF, CDFA
Associate Professor
Brad D. Smith Schools of Business
Lewis College of Business
Marshall University
Casey W. Baker, JD
Associate Professor
Brad D. Smith Schools of Business
Lewis College of Business
Marshall University
Dexter Rowe Gruber, PhD, JD
Assistant Professor
School of Business
University of Indianapolis
Abstract
This essay explores the significant role of expert testimony within the evolving landscape of U.S. federal courts, underscored by the amendments to Rule 702 of the Federal Rules of Evidence, which took effect on December 1, 2023. Initially shaped by landmark decisions such as Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co. v. Carmichael, Rule 702 has undergone modifications aimed at refining the criteria for expert testimony admissibility. These changes, motivated by the need for consistency across jurisdictions and the prevention of unreliable expert testimonies, emphasize a preponderance of the evidence standard for all four requirements of the rule. Scholars and observers should further consider the implications of these amendments across various litigation types, from highly technical scientific disputes to cases requiring specialized but non-technical knowledge. Issues include judicial and litigator burdens, increased litigation costs, and the potential for implicit and explicit bias.
Keywords: Rule 702 Amendments, Expert Testimony, Judicial Gatekeeping, Scientific and Technical Evidence, Daubert
I. Introduction
In an era of extraordinary scientific and technological advancement, expert testimony is an instrumental facet of the legal landscape. Testimony from scientific and technical experts offers courts critical insights for bridging the gap between specialized knowledge and the foundational principles upon which judgments manifest justice. Rule 702 of the Federal Rules of Evidence has historically served as the guiding light in determining the admissibility of such testimonies in U.S. federal courts. The rule was amended in 2000 to consider the holdings of Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] and Kumho Tire Co. v. Carmichael.[2]
Rule 702 was once again amended in 2023 to clarify that a judge should only admit an expert’s testimony when the judge is convinced that, by a preponderance of the evidence, the testimony demonstrates a reliable application of principles and methods.[3] Some courts have previously applied a more liberal admissibility standard, leaving it to the jury to weigh credibility.
The growth in technological and scientific knowledge has produced significant increases in relevant evidence that enhances factual clarity. Theoretically, better evidence collecting tools should not only improve factual clarity but yield more reliable court decisions. These advances in knowledge have had a significant impact on multiple legal arenas including criminal prosecutions, civil litigation, and federal or state administrative and regulatory litigation. In the criminal context, experts are necessary to elicit opinions on such subjects as psychological profiles, handwriting, forensic ballistics, and forensic DNA. In civil litigation, experts have been employed to offer opinions in broad causes of action such as transportation, construction, financial, medical and professional malpractice, infringements of federal or state laws intended to protect minority liberties, and intellectual property (IP) cases. In the administrative realm, workplace safety, occupational health, environmental protection, and securities cases an expert must have specialized subject matter knowledge to provide evidence on a given issue.
By amending Rule 702, the Advisory Committee’s intention was to bolster the rule’s capacity to sift out methodologies or opinions that may not stand up to rigorous scientific or technical scrutiny. Disparities in previous applications of Rule 702 across different jurisdictions led to inconsistencies in how expert testimonies were evaluated and admitted.[4] The 2023 amendments aimed to bring greater uniformity to this process, ensuring that similar cases are not treated dissimilarly due to varying interpretations of the rule.[5]
Inaccurate or unreliable expert testimony can have severe consequences, jeopardizing a party’s right to a fair trial. The 2023 amendments aimed to bolster safeguards against such possibilities, ensuring that litigants’ rights are preserved, and that the testimony presented is of the highest caliber.[6]
Legal rules, while seemingly static, are in fact dynamic entities, evolving in response to feedback from legal practitioners, academic critiques, and landmark case decisions. The 2023 amendments can be viewed as a response to such feedback, addressing gaps and ambiguities highlighted over the years. These changes, however, have sparked debates within the legal community about their implications on expert testimonies.
In addition to outlining the changes made to Rule 702, this Essay addresses several pivotal downstream research questions within this evolving legal landscape, reflecting the roles of expert testimony under the amended Rule 702. The authors would encourage other scholars to consider the following questions and develop empirical studies to gauge whether Rule 702, as amended, is achieving its goals without overly burdening other critical aspects of the justice system.
First, how do the amendments to Rule 702 influence litigation costs, and what are the implications for parties with varying financial resources? This question considers the direct and indirect effects of the 2023 amendments on the overall cost of litigation, examining how increased burdens on judges, litigators, and experts may lead to higher expenses and potentially create financial barriers to accessing justice.
Second, in what ways do the 2023 amendments address or potentially exacerbate implicit and explicit biases within the judicial process, especially in the evaluation of expert testimony? This question explores the amendments’ impact on judicial evaluations of expert testimony, considering whether the changes may inadvertently favor certain types of experts or methodologies and how this may influence the fairness of trials.
Third, how does the increased judicial discretion mandated by the 2023 amendments affect the consistency and predictability of rulings on expert testimony admissibility across different courts? This question delves into the consequences of granting judges more latitude in determining the admissibility of expert testimony, assessing whether this discretion may lead to variability in legal outcomes and affect the public’s trust in the judicial system.
II. Rule 702 and Expert Witness Evidence
Under the Federal Rules of Evidence, witnesses generally are not allowed to offer opinion testimony.[7] One major exception is the opinion testimony of expert witnesses, whom parties employ to provide expertise as to various specialized subject matters beyond the understanding of an ordinary lay witness.[8]
Because jurors typically lack expertise in scientific or technical matters, they may struggle to properly weigh the reliability of expert opinion testimony. Thus, federal evidentiary rules task trial judges with a gatekeeping responsibility to exclude unreliable expert opinions from jury consideration.[9]
Initially adopted in 1975, Federal Rule of Evidence 702 lacked this express gatekeeping directive. Instead, the rule simply provided:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.[10]
When applying this version of the rule, courts varied in their interpretation of when expert opinion was “generally acceptable.”[11] Courts differed on how many factors should be considered in determining acceptability, how deferential judges should be to emerging theories, and what evidentiary standard should apply to admissibility.[12]
In 1993, the Supreme Court of the United States brought some clarity to the issue with its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.[13] The Court established a four-part test for trial judges to apply when determining the admissibility of scientific expert opinion:
(1) whether the theories and methodologies underlying the opinion have been scientifically tested;
(2) whether the testing has been peer-reviewed and critiqued;
(3) whether there is a known or potential rate of error; and
(4) whether the theories and methodologies have general acceptance within the relevant scientific community.[14]
However, the Court held that no single factor is determinative, emphasizing the test’s “flexible” application.”[15] Six years later, in Kumho Tire Co. v. Carmichael, the Court extended its principles to non-scientific technical expert opinion testimony.[16]
In 2000, Rule 702 was amended to more closely track the Daubert principles.[17] However, federal trial judges continued to differ on the interpretation of the rule.[18] Courts inconsistently applied a “preponderance of the evidence” standard (preponderance standard) in performing its gatekeeping function.[19] Under the preponderance standard, the proponent of the testimony must demonstrate that it is more likely than not that the opinion is admissible.[20]
Some courts were reluctant to assess reliability under Rule 702 subsections (c) and (d), as weighing the reliability of testimony is the job of the jury.[21] These courts—invoking a phrase from Daubert—would instead apply a “liberal thrust” approach and presume the admissibility of expert opinion testimony.[22]
Most observers note that the preponderance standard is correct. But one study that reviewed federal cases over the course of a year found that courts applied the preponderance standard in just 35% of cases, with courts in approximately 60% of federal districts applying different standards.[23] In fact, in 6% of cases, courts referenced both the preponderance and liberal thrust standards, despite their conflict.[24]
Thus, in 2022, Rule 702 was further amended to state explicitly that courts should employ the preponderance standard in assessing admissibility of expert opinion testimony.[25] The revised rule, which became effective December 1, 2023, states:
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’s opinion reflects a reliable application of the principles and methods to the facts of the case.[26]
Rule 702 specifies that an expert who possesses scientific, technical, or other specialized knowledge may use that knowledge to assist the trier of fact.[27] This may apply to a multitude of case types—medical or professional malpractice, transportation, construction, IP, or financial disputes. Regardless of the subject matter, parties must demonstrate to the judge that their proffered expert testimonies are not only helpful to the factfinder but also more likely than not scientifically or technically sound.[28]
III. Implications for the Legal System
While some may argue that amended Rule 702 is not a departure from the intended application of the previous draft, some downstream consequences should be considered. Through the increase in general oversight of experts imposed upon both judges and litigators, it is likely that litigation costs will increase. Similarly important, the concern over greater judicial discretion and potential bias, as well as diminished willingness of experts to participate for reputation-preserving reasons, raises several concerning issues.
A. Increasing Litigation Costs
Generally, it is reasonable to anticipate that amended Rule 702 will increase litigation costs based on several variables. Increased burdens on judges and litigators will likely escalate the amount of time needed to navigate the various phases of a suit. Moreover, some aspects of these burdens will probably shift to participating experts, increasing their time involved in preparing and evaluating information. Collectively, these heightened responsibilities will encourage a cautiousness that imposes additional costs without benefits commensurate to the costs—akin to the defensive medicine practiced in healthcare that drives up costs and creates multiple frustrations.[29] We envision several scenarios in which these increased costs and burdens may manifest.
1. Judicial Burden.
The 2023 amendments to Rule 702 undeniably position the judge as the “gatekeeper” (some may argue “factfinder”)[30] tasked with evaluating the reliability and relevance of an expert’s methodology and conclusions. While Rule 702 is designed to maintain the integrity of the judicial process, expecting a judge to have the necessary expertise across a vast range of subjects to accurately assess these methodologies and conclusions is extending an already high bar. No matter their breadth of knowledge and education, judges cannot be expected to understand every methodology employed by every potential expert witness. This raises questions about the effectiveness of relying on a judge as the exclusive arbiter of the reliability of expert testimony that is often rooted in complicated subject matter.
Expert testimony is inherently complex, and its very nature demands expertise in specialized areas. Experts are often brought in because factual issues are so intricate that a person without scientific training may not have the depth of understanding needed to effectively evaluate the evidence. Domains like medical research, engineering, computer science, economics, and environmental science possess methodologies that might require years or even decades to truly grasp. Judges, while well-educated, are not necessarily scientific experts.
Additionally, expert methodologies are in a state of constant evolution. A method that was considered cutting edge or reliable three years ago may be outdated today. Given the multifaceted responsibilities of judges, including overseeing legal proceedings and their own continuous legal education, it is unrealistic to expect judges to stay updated with the latest advancements in every potential field of expertise that may present itself in their courtroom.
Lastly, there is an inherent subjectivity in interpreting many expert methodologies. It is conceivable for two experts, both highly qualified in their field, to derive different conclusions from the same set of data using the same methodology. This is particularly common in the medical field where “second opinions” are encouraged if not recommended in the face of a dire diagnosis. Hence, a judge’s decision to endorse or reject a particular expert’s approach may inadvertently or unintentionally introduce subjectivity, even with the best intentions to remain objective.
2. Litigator Burden
In addition to the increased knowledge burden imposed on judges, new Rule 702 will cause similar burdens on litigators. With these recent rule changes, lawyers must balance their legal expertise with a deeper understanding of science or specialized knowledge.
Many litigators possess education and experience in the law, not in complex scientific or technical fields. According to a one 2016 study, only 18% of individuals with a law degree have a science, technology, engineering, and math (STEM) undergraduate degree.[31] Thus, at least 80% of the legal profession is neither STEM educated nor trained. This blend of law and science (or specialized knowledge) requires lawyers and experts to work closely together, ensuring that scientific methods match legal requirements.
Rule 702’s changes are not just altering how courts operate; the changes are also creating new standards for lawyers that demand STEM knowledge and experience.[32] During one’s career, a litigator can expect or anticipate representing clients in cases implicating a wide range of disciplines, such as medical, environmental, engineering, or financial. Each discipline possesses unique scientific or technical foundations. The litigator with a firm grasp on such diverse scientific and technical methods will be key to overcoming Rule 702’s screening process prior to the introduction of evidence to the jury, even where generalists retain a role.[33]
3. Expert Burden
Amended Rule 702 also potentially affects professionals engaged in expert analysis and testimony. One such effect includes a more rigorous vetting of experts.[34] If the 2023 amendments necessitate stricter qualifications to serve as an expert or deeper evaluations of an expert’s methodologies, litigants may find themselves allocating more resources to pre-trial preparations. This may encompass longer vetting periods, added rehearsals, and the possibility of liaising with secondary experts to corroborate the primary expert’s assertions.
A significant societal cost may result from a more rigorous vetting process—discouraging expert participation. The 2023 amendments to Rule 702 inadvertently carry the potential to dissuade many professionals from stepping into the role of an expert witness, especially if judges exclude expert testimony based on perceived methodological flaws rather than actual methodological flaws. The potential ramifications are severe. Such an exclusion is not just a single event. For many, an exclusion may linger as a stain on their professional record, potentially undermines their credibility in both academic and professional spheres, and provides fodder for future litigants if the expert’s services are utilized in future suits.
Given this risk, many esteemed professionals may determine the potential damage to their reputation too steep a price to pay or forego the role of an expert witness altogether to avoid the risk of rehashing and relitigating an embarrassing exclusion from a previous suit. This may lead to fewer qualified individuals willing to remain as testifying experts and discourage eminently qualified individuals from joining the expert pool. Inadvertently suppressing qualified experts may yield an expert pool that is smaller in size and lower in quality.
Additionally, if amended Rule 702 is interpreted to overly emphasize current scientific consensus as the safest, conservative choice, it may hinder the introduction of innovative or radical expert viewpoints that challenge conventional wisdom. Particularly in fields like pattern evidence, arts, humanities, or cultural studies, expertise is often rooted in subjectivity and experiential knowledge.[35] By favoring empirical and measurable methodologies, a stricter interpretation of the rule may overlook this essential type of expertise.
Such constraints may have far-reaching effects. Expert testimony provides much more than facts, it gives context, perspective, and a more nuanced understanding of the complex. Curtailing this expertise may deprive the court of crucial insights, possibly resulting in less informed decision-making and outcomes.[36] This influence will have a particular impact on the more visually-subjective areas of concern, including IP involving evaluations of copyright infringement, trademark infringement, and design patent infringement.
4. Aggregate Burdens and Increased Costs
Economically, rising costs may present obstacles for litigants with limited financial means, inadvertently creating a monetary barrier that hinders access to justice. Litigation inherently seeks to settle disputes and reestablish equilibrium. However, when regulatory modifications make litigation exorbitantly expensive, it risks alienating the very individuals it aims to assist and potentially fosters a sense of disenchantment with the judicial system. While the 2023 amendments to Rule 702 were crafted with the intention of refining the criteria for the admissibility of expert testimonies, they appear to carry the unintended side effect of increasing litigation expenses. As the legal realm grapples with these changes, finding a balance between upholding the credibility of expert testimonies and ensuring that litigation is both affordable and accessible will be important.
The introduction of added criteria will prompt additional challenges to experts’ qualifications or methodologies. This may result in extended pre-trial motions and Daubert hearings, which would not only prolong the litigation process but also increase attorney fees and associated court expenses. Given the risk of an expert’s testimony being deemed inadmissible under the new provisions, lawyers may feel the need to engage multiple experts as a precaution to have fallback options in the face of such decisions. Furthermore, experts, cognizant of the intensified scrutiny, may levy higher fees to account for the added time and increased attention needed to ensure compliance with the heightened standards. The increased time and cautiousness of evaluating expert testimony, opportunities for prolonged attacks along the evaluation continuum, and the additional grounds for appeals of exclusions each carry the hefty direct cost of extending the duration of a single suit.
For example, IP litigation is a particularly cost-intensive endeavor. At the least expensive end, copyright litigation averages about $278,000 in federal court.[37] Next, trademark litigation ranges from $375,000 to $2 million.[38] Median patent litigation costs are approximately $4 million,[39] with the cost of defending an allegation of patent infringement exceeding $3 million.[40] Though not getting quite as much attention as patent litigation, trade secret misappropriation suits often involve significant financial risk, especially with high volume products or services.[41] In cases where the financial risk ranged between $10 million and $25 million, the average cost of the trade secret litigation was $4.1 million.[42] In the U.S., approximately 12,000 suits are filed every year across these four broad categories of IP.[43] On the specific issue of expert witness costs, one observation has placed expert witness fees as the second-highest itemized cost within IP litigation.[44]
IP litigation is rife with imbalances. Many high-profile IP litigation matters that reach the trial and judgment phases are generally large firms versus large firms: Apple and Samsung; Oracle and Google.[45] Although significant dollars exchange hands, firms of their size can not only bear that cost but just as often pass on those costs to consumers, and thus do not necessarily feel the full brunt of the strategies and ultimate outcome. However, a significant number of suits involve a mix of firm sizes, including large versus small or medium enterprises (SMEs) and non-practicing entities (NPEs) (sometimes derisively labeled “patent trolls”).[46]
In terms of size, NPEs are at best a subset of SMEs, as they are registered businesses but do not produce or generate sales of goods or services, and therefore do not generate revenue in a traditional sense. Rather, NPEs possess IP content and use this portfolio to capture a percentage of revenue generated from the production and sale of allegedly infringing products and services. Through litigation, NPEs attempt to secure passive income via negotiated or adjudicated royalties on some defined thresholds of revenue participation. Although the stats vary from year-to-year, at least 50% of patent suits are filed by NPEs.[47] Thus, of the 3,800 patent suits filed annually, at least 1,700 suits are filed by NPEs every year.[48] Three NPEs—Cedar Lane Technologies, Inc., WSOU Investments LLC, and Bell Semiconductors LLC—represent approximately five percent of all patent suits.[49]
Putting aside the NPE volume filers concern, the other NPEs filing over 1,700+ patent suits per year represent new ventures, startups, and other small firms that struggle to possess sufficient resources to challenge unauthorized use of their patents.[50] Many NPEs are such because of limited production resources, lack of willing production partners, or fear of disclosure greeted by “thanks, but no thanks” followed by look-a-like products or services.[51] Despite securing a patent for invention or acquiring such through purchase, the significant costs of litigation further strain the resources of NPEs that do not have the benefit of stable revenue. Similarly, though SMEs may enjoy a steady influx of revenue or monthly profits, the cost of litigation strains the bottom line of SMEs. These costs and the perception that litigation spending on experts yields favorable results discourage NPEs and SMEs from pursuing such outcomes. Should application of amended Rule 702 cause even some of the feared contraction of the expert pool, with the remaining experts charging even higher fees, NPEs and SMEs may be locked out of effectively seeking justice that they may have earned and deserved.
While IP litigation finance continues to grow and evolve, such funding firms demand and receive significant percentages of any awards recovered and/or income streams generated through settlement or adjudication. Depending upon the nature of the IP portfolio that an NPE or SME possesses, a damages award or reasonable royalty based upon the continued production of the infringing good(s) may inure significant monetary benefits to the financiers. In such situations where the patent originated with the NPE or SME, the policy and spirit supporting Article 1, Section 8, Clause 8 of the U.S. Constitution is compromised, since any reward to the author and/or inventor is partially depleted to repay the financier.[52]
B. Implicit and Explicit Bias
The recent alterations to Rule 702 compel a more stringent evaluation of the admissibility of expert testimony, pushing the boundaries beyond what a judge may traditionally view as necessary or just. While standardized criteria can safeguard against inconsistent judicial decisions, they may also oversimplify the complex nuances that come with testimonies. In essence, the changes may inadvertently sideline the seasoned judgment of a court official in favor of a more rigid, one-size-fits-all framework. For instance, one potential repercussion of the amendments may be a preference for experts hailing from esteemed institutions or those with distinguished accolades. This inclination towards well-established names may inadvertently overshadow younger, emergent experts, even when their perspectives are as credible or perhaps even more groundbreaking than their more-seasoned colleagues.
There is also a looming danger of judges gravitating towards expert testimonies that resonate with their preliminary beliefs or case perceptions, a typical instance of confirmation bias. The potential introduction of these biases carries profound consequences. Expert testimonies play a pivotal role in determining outcomes, establishing legal precedents, and even influencing public opinion on pivotal matters. If inadvertent bias infiltrates the evaluation process concerning the acceptability of these testimonies, the foundational principles of a fair trial may be compromised.
Moreover, the standards may favor litigants possessing significant financial resources, allowing them an easier path to enlisting experts adept at maneuvering the complexities of the revised rule. This may create a contrast where those that are less financially endowed struggle, inadvertently skewing the system towards those with economic advantages.
C. Inconsistent Judicial Discretion
While some judicial discretion is essential for adapting to unique case nuances, excessive latitude can introduce unpredictability and potential bias. The concentration of the discretion in one person—the judge—raises concerns about the potential vagueness in assessing expert reliability. Relying on a judge, who may lack in-depth knowledge in specialized scientific or technical fields, to gauge an expert’s methodology is potentially risky. Decisions on such matters should not be based on judicial perspectives that may be more influenced by compelling legal presentations than by empirical validity.
Further, this magnified discretion may increase the inconsistency in Rule 702’s application. The judge is the clear decision-maker under amended Rule 702, but there is no guarantee that two judges will reach the same conclusion as to a particular expert approach. This divergence can create a legal environment where outcomes are more influenced by the individual inclinations of the sitting judge than a uniform application of the law. This is ironic since inconsistency was precisely the concern of the amendment’s proponents.[53]
Additionally, there is the danger of an excessive dependence on prior rulings. Empowered by their enhanced discretion, judges may rely heavily on previous decisions, even if fresh or avant-garde expert views contest established beliefs. While past rulings are integral to the common law tradition, blind adherence due to widened discretion may inhibit the growth of legal thought, especially in fields where science and technology are rapidly progressing. The potential impact on public trust in the legal process is paramount. If the public perceives that decisions are more reflective of a judge’s personal leanings than a steadfast rule of law, their faith in the justice system may wane.
We also question the continued utility of jury trials in cases involving significant degrees of scientific or technical expert testimony. Parties to litigation are now required to convince one fact finder—the judge—that their respective expert evidence is more likely reliable than not. Given that, why would litigants take the risk of having to then subsequently convince a second fact finder—the jury—of the same?
IV. Conclusion
The 2023 amendments to Rule 702 represent a pivotal juncture in the continuous evolution of the U.S. legal system’s approach to expert testimony. Designed to enhance the reliability and consistency of expert testimonies across jurisdictions, these changes signify the judiciary’s commitment to upholding the standards of evidence and ensuring a fair trial for all parties involved. However, while the intent behind the amendments is commendable, they do not come without potential challenges and consequences. The balance between ensuring rigorous, reliable testimony and maintaining accessibility to expert opinions remains delicate. The ramifications of these changes will only truly manifest in practice; it is crucial for the legal community to be vigilant, ensuring that the 2023 amendments achieve their intended purpose without inadvertently compromising the very principles they seek to uphold.
[1] 509 U.S. 579 (1993).
[2] 526 U.S. 137 (1999).
[3] Fed. R. Evid. 702 Advisory Committee’s note to 2023 amendment. An amendment to a federal rule typically takes about three years. See Pending Rules and Forms Amendments, U.S. Courts, https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments [https://perma.cc/M6FV-77BW]. A proposed rule will emerge from an advisory committee, followed by public commentary during the first year. See id. In the second year, the preliminary draft will be considered by standing committees comprised of practicing attorneys, law professors, and judges. See id. Finally, in the third year, a proposed rule will be considered by the Supreme Court and Congress. See id.
[4] See id.
[5] Colleen Cochran, The Process, Progression, and Potential Ramifications of the Rule 702 Amendment, Bus. L. Today (Sept. 5, 2022), https://www.americanbar.org/groups/business_law/resources/business-law-today/2022-september/process-progression-and-potential-ramifications-of-rule-702-amendment/ (last visited Apr. 16, 2024) (noting Advisory Committee’s intent for Rule 702 amendment).
[6] See Eric M. Kraus et al., Amended Federal Rule 702 and Expert Admissibility: A Rule that Hit the Ground Running, Nat’l L. Rev. (Dec. 20, 2023), https://www.natlawreview.com/article/amended-federal-rule-702-and-expert-admissibility-rule-hit-ground-running [https://perma.cc/Y2GL-2EEW] (highlighting aims of Rule 702 amendments).
[7] See Fed. R. Evid. 701.
[8] See Fed. R. Evid. 702.
[9] See Richard Collin Mangrum, Comment on the Proposed Revision of Federal Rule of Evidence 702: “Clarifying” the Court’s Gatekeeping Responsibility over Expert Testimony, 56 Creighton L. Rev. 97, 97 (2002).
[10] Fed. R. Evid. 702 (1975).
[11] See Mangrum, supra note 9, at 98. (explaining “general acceptability” standard).
[12] See id. (discussing courts’ criticism of “general acceptability” standard).
[13] See 509 U.S. 579, 589 (1993).
[14] See id. at 593-94.
[15] See id. at 594.
[16] 526 U.S. 137, 141 (1999).
[17] See Mangrum, supra note 9, at 103.
[18] See id.
[19] See id. at 107.
[20] See id.
[21] Fed. R. Evid. 104(e).
[22] See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993).
[23] See Kateland R. Jackson & Andrew J. Trask, Federal Rule of Evidence 702: A One-Year Review and Study of Decisions In 2020 2 (2021), https://www.lfcj.com/s/lcj_study_of_rule_702_decisions_from_2020_-_sept_30_2021-zkb5.pdf [https://perma.cc/W8FP-V9GT] (summarizing Lawyers for Civil Justice (LCJ) study findings).
[24] See id.
[25] See Mangrum, supra note 9, at 105-06.
[26] See Fed. R. Evid. 702; Kraus et al., supra note 6.
[27] Fed. R. Evid. 702(a).
[28] See Kraus et al., supra note 6.
[29] See Laura Dyrda, Defensive Medicine Is Costing Healthcare Billions, Becker’s ASC Rev. (Mar. 4, 2022), https://www.beckersasc.com/asc-news/defensive-medicine-is-costing-healthcare-billions.html [https://perma.cc/8N93-RLEQ] (noting defensive medicine increases costs to healthcare system between $50 billion and $65 billion annually).
[30] Cochran, supra note 5.
[31] Debra Cassens Weiss, Law Degrees Give the Biggest Pay Boost to Students with These College Majors, Am. Bar Ass’n J. (Mar. 9, 2016), https://www.abajournal.com/news/article/law_degrees_give_the_biggest_pay_boost_to_students_with_these_college_major#:~:text=Humanities%20majors%20get%20a%20median,estimates%20in%20a%20new%20study [https://perma.cc/439W-3QL3] (enumerating study findings on value of law degree by college major).
[32] See Adrienne Mand Lewin, Legally Bound: STEM Skills and Diversity Are Increasingly Important to the Practice of Law, 5 Diversity in Action, Mar.-Apr. 2019, at 52, 52-54, https://mydigitalpublication.com/publication/?m=46265&i=572822&p=54&ver=html5 [https://perma.cc/NE6T-6QH2]; see also Maya Ffrench-Adam, 5 Reasons Law Firms Want to Hire STEM Grads, Legal Cheek (Dec. 14, 2020), https://www.legalcheek.com/lc-careers-posts/5-reasons-law-firms-want-to-hire-stem-grads/ [https://perma.cc/F8VU-8ZHK].
[33] Elise Baumgarten et al., Patent Litigation Is Not Just for Scientists, BL (Apr. 26, 2021), https://news.bloomberglaw.com/ip-law/patent-litigation-is-not-just-for-scientists [https://perma.cc/3XC6-ZDGM] (discussing role of litigators with STEM backgrounds in patent litigation).
[34] See Kristen M. Bush & Kayla M. Kuhn, Proposed Amendments to Federal Discovery Rule of Evidence 702 and Their Impact on Expert Discovery, The Brief 54 (June 14, 2023), https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2022-23/winter/proposed-amendments-federal-rule-evidence-702-and-their-impact-expert-discovery/ (last visited Apr. 16, 2024).
[35] See Barry A. J. Fisher, A New Challenge for Expert Witnesses Relying on Subjective Information, 2 Forensic Scis. Rsch. 113, 113 (2017), https://academic.oup.com/fsr/article-pdf/2/3/113/46748372/fsr_2_3_113.pdf [https://perma.cc/93AW-KXNV].
[36] See id. at 114 (contending judges need assistance in scientific and technical subjects).
[37] See A Guide to Intellectual Property Litigation, Thomson Reuters Legal (Dec. 23, 2022), https://legal.thomsonreuters.com/blog/guide-to-intellectual-property-litigation/ [https://perma.cc/37EE-R2XC].
[38] See id.
[39] See id.
[40] See Intellectual Property: What Do the Statistics Indicate?, CRI Grp., https://crigroup.com/intellectual-property-what-do-the-statistics-indicate/ [https://perma.cc/2YQS-E2NG].
[41] See A Guide to Intellectual Property Litigation, supra note 37; see also Trade Secret Litigation 101, Thomson Reuters Legal (Nov. 23, 2022), https://legal.thomsonreuters.com/blog/trade-secret-litigation-101/ [https://perma.cc/AUV5-XBVT].
[42] See A Guide to Intellectual Property Litigation, supra note 37.
[43] Intellectual Property: What Do the Statistics Indicate?, supra note 40.
[44] See Anne Brody and Natalie Dygert, Shifting Expert Fees in Intellectual Property Litigation, Ass’n Bus. Trial Laws. Rep. Orange Cnty. Summer 2016, at 3, https://www.abtl.org/report/oc/abtlocvol18no2.pdf [https://perma.cc/H8JX-ZUVQ].
[45] See Bruce Berman, Too Many Patent Suits? The Data Suggests There Are Too Few, IP Watchdog (Apr. 6, 2023), https://ipwatchdog.com/2023/04/06/many-patent-suits-data-suggests/id=159050/ [https://perma.cc/KNZ9-YJFM] [hereinafter Berman, Too Many Patent Suits?] (listing most common defendants in IP litigation).
[46] See Bruce Berman, From Patent “Trolls” to Content “Providers” – High Return on Controlling the Language, IP Close Up (Nov. 14, 2023), https://ipcloseup.com/2023/11/14/from-patent-trolls-to-content-providers-high-return-on-controlling-the-language/ [https://perma.cc/8A5P-5CG9].
[47] See How Current IP Patent Litigation Trends Are Changing Risk Exposures, AON (July 18, 2023), https://www.aon.com/en/insights/articles/how-current-ip-patent-litigation-trends-are-changing-risk-exposures [https://perma.cc/7MJA-B6MU].
[48] See Bruce Berman, Three Plaintiffs Are Responsible for Most Volume Patent Suits – Who Are They?, IP Close Up (Mar. 7, 2023), https://ipcloseup.com/2023/03/07/three-plaintiffs-are-responsible-for-most-volume-patent-suits-who-are-they/ [https://perma.cc/44YF-65QF] [hereinafter Berman, Three Plaintiffs]; see also Berman, Too Many Patent Suits?, supra note 46.
[49] See Berman, Three Plaintiffs, supra note 48.
[50] See Christopher A. Cotropia, Jay P. Kesan, & David L. Schwartz, Unpacking Patent Assertion Entities (PAEs), 99 Minn. L. Rev. 649, 650-53 (2014) (breaking down NPE representation).
[51] See id. at 655-60.
[52] U.S. Const. art. I, § 8, cl. 8 (empowering Congress to grant authors and inventors exclusive rights for limited times).
[53] See Jackson & Trask, supra note 23, at 2 (suggesting amendment to reduce confusion and inconsistency in federal courts).