A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: FRE 702

Be Careful! Court Denies Daubert Motion That Sought to Strike Expert Report Rather Than to Exclude Testimony (and Included Incorrect Citations)

Andrew E. Russell, March 14, 2025
FRE 702 Daubert

Caution Warning
Bernd Dittrich, Unsplash

Today, Chief Judge Connolly issued a memorandum order in Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC denying a Daubert motion in part because it sought to strike the expert's expert report rather than excluding his testimony.

The Court actually agreed that the expert's testimony ought to be excluded under Rule 702—if only the moving party had filed a better motion:

In its briefing filed in support of the motion, Stirista argues that "Mr. Kelleher's opinions and conclusions related to market confusion should be excluded [under Rule 702] as unqualified, unreliable, and unhelpful to a trier of fact." . . . Having read the parties' briefing on this question, I'm inclined to agree with Stirista. …
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Court Bars Technical Expert's Testimony About Opposing Party's "Purported Litigation Misconduct, Corporate Culture, and Ethics"

Andrew E. Russell, June 28, 2022
Expert Witness Expert Discovery

Is there corporate culture in there? Let's hear from our expert...
Slejven Djurakovic, Unsplash

When expert reports go back and forth in a patent case, it's not uncommon to see complaints from the patentee's expert along the lines of "I understand that the opposing party did not produce information regarding x, so I will instead base my opinions y."

In other words, the expert wants to keep the door open to explain to the jury that he or she would have done a particular analysis if only the other side had given them the information they needed. But, obviously, the other side may object to that testimony.

Judge Connolly addressed a situation like yesterday, and held that the expert cannot just testify to the jury about the other sides alleged …

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