EcoFactor: Did the Federal Circuit Unconstitutionally Displace the Jury?

by Dennis Crouch

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. EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc). 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.

EcoFactor presents three questions in its new petition for writ of certiorari:

1. Whether the Federal Circuit violated the Seventh Amendment by substituting its own evaluation of evidence for the jury's factual findings;
2. Whether the Federal Circuit applies a uniquely stringent standard for admitting damages expert testimony under Federal Rule of Evidence 702 that conflicts with other circuits; and
3. Whether the court violated EcoFactor's Fifth Amendment due process rights by deciding the appeal on contract interpretation grounds never raised or briefed by the parties.

The petitioner's basic argument here is that the appellate court engaged in improper reweighing of facts rather than sticking to the narrow post-verdict options available in 1791.

Federal Rule of Evidence 702 governs the admission of expert testimony in federal court. As amended in 2023, the rule requires that expert testimony be based on "sufficient facts or data," use "reliable principles and methods," and reflect "a reliable application" of those principles to the case facts. The district court acts as gatekeeper, admitting expert testimony only when the proponent demonstrates by a preponderance of evidence that these requirements are met. The rule aims to ensure that expert opinions assist the jury without overwhelming it with unreliable speculation.