While there is no proof, it appears that the courts are rejecting Daubert standard and FRE 702 challenges more frequently. Take, for example, these two companion cases: Xodus Med. v. Prime Med., 2021 U.S. Dist. LEXIS 240473, and Xodus Med. v. Prime Med., 2021 U.S. Dist. LEXIS 238187. The opinions actually emanated from the same base case and were motions to exclude testimony of the plaintiffs’ expert in one instance and to exclude testimony of the defendant’s expert in the other case.
The base case is a patent infringement case relating to patents on a medical surgery device. Each motion asked to exclude all or parts of the testimony of the experts related to lost profits and an estimated royalty rate. The court denied both motions. Essentially, what the court said was that the testimony of each of these experts would more properly be the subject of cross-examination than exclusion of the expert.
When the Daubert and then Kumho Tire cases were decided, it became de rigueur to challenge experts in many, if not all, cases. One of the reasons for this proliferation was twofold. First, the opportunity to knock an opponent’s expert(s) out of the case. This sometimes resulted in one side no longer having any argument to present on damages, etc. The other reason was, in my opinion, a protective measure on the part of the attorney. What attorney would want to be in a situation where he or she failed to file a Daubert standard or a FRE 702 objection to an expert in a case and then lose the case as a result of expert testimony?
As things have developed, the courts are, in my opinion, gravitating toward using the Daubert standard and FRE 702 for its intended use in eliminating testimony that might not be reliable or from an expert who might not be qualified. This can especially be a problem in a jury trial where the jurors might not be capable of determining the reliability and quality of testimony. The first thing that happened was that some judges were being reversed where a witness or testimony had been excluded, especially in cases of a bench trial where the trier of fact was the judge. The higher courts sometimes reasoned that there was less chance of the exclusion harming the excluded expert’s party. Judges should be able to determine the weight of the evidence after hearing it—and judges do not like to be reversed.
Secondly, it appears that the judges are being more reluctant to exclude testimony, when, as seen in these two cases, the matter of objection can be effectively dealt with during cross-examination.
All in all, it has been a learning process for all involved, but it seems to me to be on a good trajectory at this time.