Publications

On May 21, 2025, in an 8-2 en banc decision, the Federal Circuit held that the district court’s decision to deny a new trial on damages, made without giving rationale for its ruling, was an abuse of discretion and, in addition, the record of the case could not support the patent owner’s expert’s opinion that its licenses showed an acceptance of $X per-unit rate as an established royalty. (Opinion at 6). The dissents criticize the majority opinion as usurping the jury’s role as fact finder and requiring the trial court to overstep its role as gatekeeper.

On the law, all of the judges agreed that under Federal Rule of Evidence 702, the judge may exclude opinions of an expert that lack any factual basis but that facts in dispute should be determine by a jury. The majority found that amendments to Rule 702 codified the trial court’s gatekeeping role: “These changes ‘affirm[ed] the trial court’s role as gatekeeper and provide[d] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.’” (Opinion at 8, quoting FED. R. EVID. 702 advisory committee’s note to 2000 amendment). Further, the majority noted that the Advisory Committee found that courts had punted on critical questions of the sufficiency an expert’s basis as going to “‘weight and not admissibility.’” (Opinion at 9). The majority favorably endorsed the Advisory Committee’s conclusion that “‘[j]udicial gatekeeping is essential’ to ensure an expert’s conclusions do not ‘go beyond what the expert’s basis and methodology may reliably support.’” Id. The majority opinion reinforces the principle that assessing the credibility of an expert’s opinion is the jury’s responsibility, however that credibility may be tested through vigorous cross-examination. Id. But “a determination [by the court] of reliability under Rule 702 is an essential prerequisite.” Id. In other words, the trial court should not allow the jury to hear opinions that are not based on believable facts.

The specific issue reviewed by the Federal Circuit hinged on three agreements entered into by Ecofactor, each agreement containing a whereas clause stating that “Ecofactor represents” it has agreed to the payment based on Ecofactor’s belief that the lumpsum amount corresponds to $X per-unit for past and future sales of products at issue in the litigation. Two of the agreements contained statements that the licensee did not agree to a particular calculation of a per-unit rate while the third was silent as to the licensee’s belief. The majority found these representations by Ecofactor in the agreements, which were not backed up by an analysis of actual sales by the expert, to be an insufficient basis for the expert to conclude that the parties had agreed to $X per-unit as a rate since the statements were solely Ecofactor’s subjective representation and at least two of the agreements had contradictory language showing that there was no agreement on a rate. The dissent points to other evidence corroborating the expert’s conclusion introduced at trial, including testimony from Ecofactor’s CEO supporting the rate, market share data, etc., although it is not clear how much of this other evidence the expert relied on to form his opinion.

The facts seemed very close to the border of whether the evidence could “reasonably support competing conclusions,” which the majority concluded it did not (Opinion at 21), or whether this was just a questionable opinion whose credibility should have been left for the jury to consider. (Stark Dissent at 3). Interestingly, neither the majority nor the dissent argue that this decision changes the law. Both dissenters note that the majority’s ruling is narrow. (Reyna Dissent at 2; Stark Dissent at 2).

In our view, this opinion is a sound platform to argue if an expert puts forth facts that lack sufficient credibility when “[t]here can be no doubt,” (Opinion at 21) and will lead to more challenges. Subsequent cases will determine whether this opinion leads to an expansion of the gatekeeping role of trial court judges. However, we share the concern of Judge Stark of the “risk that [this] opinion will be misread as requiring district judges, in pursuit of the gatekeeping responsibilities, to invade the providence of jurors and resolve fact disputes.” (Stark Dissent at 3).

Wiggin and Dana has extensive experience working with qualified experts to develop credible and well-supported damages and valuation opinions. We also regularly advocate for our clients in disputes over the admissibility of expert testimony. As courts continue to clarify the boundaries of expert evidence, we are well-positioned to help clients navigate these issues effectively.

If you are facing questions expert opinion admissibility, we welcome the opportunity to assist.