"Over the past couple of years, I have noticed increased willingness of the Federal Circuit to reject jury verdicts, especially in situations involving potentially inadequate expert testimony. This past summer, the Federal Circuit's en banc EcoFactor decision followed this pattern by overturning a $20 million jury verdict based upon flaws in the patentee's damages expert testimony."
"In my view, the decision did not alter any law associated with expert testimony, but rather served as a pointed reminder to district to rigorously scrutinize whether the expert's opinions are actually tied to sufficient facts in the record and whether the methodology is reliably applied to the specific circumstances of the case. But, this rigor has some potential of improperly overstepping into the jury's role as fact finder."
"The key Constitutional issue is the Seventh Amendment, which guarantees a trial in patent cases where the patentees are seeking legal damages. The Seventh Amendment also prohibits "re-examin[ing]" any fact tried by the jury, other "than according to the rules of the common law." The "common law" language cues the court to look back to 1791 and consider what was available at the time."
The Federal Circuit has increasingly overturned jury verdicts due to allegedly inadequate damages expert testimony, exemplified by the en banc EcoFactor decision that vacated a $20 million verdict. The court emphasized close scrutiny of whether experts tie opinions to sufficient record facts and whether methodologies are reliably applied to case-specific circumstances. That level of scrutiny can prompt appellate reexamination of factual findings, implicating the Seventh Amendment prohibition on reexamining facts tried by a jury. The EcoFactor petition raises questions about appellate factfinding, whether the court applies a uniquely stringent Rule 702 standard, and potential Fifth Amendment due process issues from unbriefed contract interpretation grounds.
Read at Patently-O
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