Two Years of Amended FRE 702: Has It Tightened Daubert?

Two years into the amended Rule 702, the answer to the tightening question is yes, with a qualification. Patent Daubert outcomes have moved in the direction the Advisory Committee intended. Most of the movement has come at the partial-exclusion margin. Full exclusions are up modestly. Full admissions are down modestly. The Federal Circuit has reinforced the trend in two major 2025 decisions.

That is the topline. The detail below covers what the amendment said, what the pre-amendment baseline looked like, what the two-year post-amendment picture shows, and what year three is likely to bring.

What the amendment said

The December 1, 2023 amendment to Federal Rule of Evidence 702 made two changes. First, the rule now states explicitly that the proponent of expert testimony must demonstrate the reliability requirements by a preponderance of the evidence. Second, the rule clarifies that the reliability requirements are admissibility questions for the court, not weight questions for the jury.

Neither change was a doctrinal break with Daubert v. Merrell Dow Pharmaceuticals or with Kumho Tire v. Carmichael. The Advisory Committee framed the amendment as a clarification of the existing standard, not a new test. The motivation was an empirical finding, surfaced in part by the Lawyers for Civil Justice review of 1,059 federal trial-court opinions from 2020, that 65 percent of district court Rule 702 opinions in the pre-amendment period did not cite the preponderance standard.

The amendment was meant to correct that drift. The expectation, from the Advisory Committee notes and from the commentators, was that post-amendment Rule 702 rulings would more frequently exclude expert testimony that did not clear the reliability bar.

Pre-amendment baseline

In the pre-amendment period, patent Daubert merits rulings split roughly along three lines: a majority admitted the expert testimony in full, a substantial minority resulted in partial exclusion, and a smaller share resulted in full exclusion. The partial-to-full ratio was closer to 1.5 to 1 than the current 2 to 1.

The pre-amendment pattern was also more variable across districts. Some courts applied the reliability prongs strictly. Others treated reliability as a weight question and let most expert testimony go to the jury, consistent with the drift the Advisory Committee was trying to correct.

This is the baseline against which the post-amendment period is measured. The measurement is imperfect, because docket composition changes year to year, expert practice evolves, and Federal Circuit decisions intervene. But the aggregate trends are stable enough to read.

Post-amendment two-year picture

The two-year post-amendment Daubert outcome split, across patent expert testimony on WitnessLens, holds at roughly 51 percent admitted, 35 percent partial exclusion, 14 percent full exclusion. The partial-to-full ratio sits at 2.5 to 1.

The shift relative to the pre-amendment baseline is concentrated in two places. Full admissions dropped by several percentage points. Partial exclusions absorbed most of that drop. Full exclusions moved up modestly. The movement is real, but it is not dramatic, and the partial-exclusion margin is where most of the tightening has materialized.

Damages experts account for a disproportionate share of the partial-exclusion increase. Technical experts on infringement, validity, and POSITA framing have seen a smaller post-amendment shift. The damages-expert tightening is the more visible signal in the two-year data.

District-level variance has narrowed. The pre-amendment range between the strictest and the most permissive patent courts on Rule 702 has compressed in the post-amendment period. Courts that previously treated reliability as a weight question have moved toward partial exclusion as a default response to challenged methodology. The convergence is consistent with the Advisory Committee's stated objective.

The Federal Circuit's role

Two 2025 Federal Circuit decisions reinforced the post-amendment tightening at the appellate stage. EcoFactor v. Google (Fed. Cir. 2025) (en banc) vacated a damages award on comparable-license reliability grounds, framing the failure as a Rule 702 problem the trial court should have caught. Rex Medical v. Intuitive Surgical (Fed. Cir. 2025) reduced a $10 million verdict to $1 in nominal damages after a portfolio-license apportionment failure.

Both decisions applied the existing reliability standard. Neither announced a new rule. But both signaled that damages expert testimony will be scrutinized on appeal with the rigor the amendment requires, and both showed up quickly in district court motion practice. Daubert briefing in damages cases now routinely cites one or both decisions.

The Federal Circuit's reinforcement matters because it stabilizes the trial-court tightening. District judges who applied Rule 702 strictly in 2024 now have appellate cover for the same approach. The risk of being reversed for excluding too aggressively has receded. The risk of being reversed for admitting too permissively, as Rex Medical illustrates, has not.

What to expect in year three

Two things to watch in 2026.

First, whether the partial-exclusion margin continues to absorb the tightening, or whether full exclusions start moving up more visibly. The current 2.5-to-1 partial-to-full ratio could shift toward 2-to-1 if courts begin treating repeat methodological failures as outright exclusion candidates rather than partial-exclusion candidates. The Federal Circuit signals in EcoFactor and Rex Medical point in this direction for damages experts specifically.

Second, whether the district-level convergence continues. The remaining variance between courts is concentrated in a few districts that have been slower to adopt the strict-preponderance reading of the amendment. If those districts move in line over the next 12 months, the aggregate split will tighten further, and the partial-to-full ratio will move with it.

For retaining counsel, the practical takeaway is unchanged from the one that has held since December 2023. The amendment is real. The Federal Circuit is enforcing it. Expert methodology that does not show the work is exposed at the trial court and exposed again on appeal, and the cost of the exposure is now visible in two years of post-amendment data.

A note on the data

The pre-amendment baseline and post-amendment two-year outcome splits draw on patent Daubert merits rulings on WitnessLens. Merits rulings are defined as district court orders that reach the reliability or fit prongs of Rule 702, excluding orders denied as untimely or as duplicative of earlier rulings in the same case. The Lawyers for Civil Justice figure (1,059 opinions from 2020, 65 percent not citing the preponderance standard) is reported from that organization's published review and is not independently recomputed here. Methodology details are on the methodology page.