Expert Testimony Inadmissible Where “Critical Fact” Contradicts Evidence, Rules Divided Federal Circuit

A divided Federal Circuit has issued an en banc decision that appears to significantly tighten the standard for admitting expert testimony on damages. On May 21, an 8-2 majority held in part that Western District of Texas Judge Alan D. Albright had been wrong to admit expert testimony on damages from plaintiff EcoFactor, Inc. because it was not “based upon sufficient facts or data”, ruling that a district court errs by admitting expert testimony where a “critical fact” relied upon by the expert is contradicted by relevant evidence—and on that basis, reversing a contrary Federal Circuit panel decision that affirmed the lower court’s ruling on that issue. As a result, the majority overturned a $20M damage award against Alphabet (Google), sending the case back for a new trial on damages. The decision prompted two additional opinions, both warning that the majority had conflated its role as a gatekeeper with the jury’s role as the factfinder.