LCJ Amicus Brief, Barry v. DePuy Synthes Companies, Federal Circuit

LCJ’s amicus brief on the application of Federal Rule of Evidence 702, filed with the US Court of Appeals for the Federal Circuit in Barry v. DePuy Synthes Companies, supports the defendants-appellees’ petition for an en banc rehearing. The brief, prepared for LCJ by Matthias Kamber (Paul Hastings LLP), argues that the Federal Circuit’s panel majority applied an incorrect legal standard when it reversed the district court’s exclusion of Plaintiff’s expert witnesses. The district court decision was reversed by the Federal Circuit panel majority for treating a methodological flaw in the expert’s analysis as going to admissibility instead of weight. This turns amended Rule 702 on its head and should be reversed by the Federal Circuit en banc.

The panel majority’s approach disregards the explicit admissibility requirements of Rule 702(b) and 702(d) and is incompatible with the amendment. The panel majority erred in overturning the district court decision excluding expert evidence based on archaic caselaw displaced by the text of amended Rule 702. The panel majority repeatedly relied on the adage that the weight and credibility of the experts’ opinions should be evaluated by the jury as finder or fact. For example, the panel majority said that “DePuy’s challenges, and the purported flaws the district court found in [a proposed expert’s] survey and methodology, go to the weight the jury might accord to that evidence and not to its admissibility.” Federal Rule of Evidence 702 was amended in 2023 to correct gatekeeping errors like the one the panel majority made in this decision.

The brief author, Matthias Kamber, is a premier IP litigator with Paul Hastings LLP. Mr. Kamber is based in the San Francisco office of Paul Hastings. Click here to read the Amicus.