Two Recent Discussions on Experts

1.  Hot-tubbing—a practice which typically takes the form of judges asking questions of  expert witnesses concurrently—is a topic I have touched upon a few times in the past, particularly as it may related to expert testimony concerning damages in IP cases (see here and here).  Samuel Kim has now published a paper on the topic, titled Post-Daubert:  Expert Hot-Tubbing as a Workable Tool for Trial Judges, 34 Fed. Cir. B.J. 121 (2025).  Here is a link, and here is the abstract:

 

Expert evidence plays an undisputedly important role in today’s courts. Judges must decide highly technical issues, and jurors must make difficult decisions based on complex, often partisan, expert testimony. Rule 702 of the Federal Rules of Evidence establishes trial judges’ gatekeeping role for expert testimony, and federal judges continue to face difficulties performing such role.

 

This Note argues that "hot-tubbing," the practice of both parties’ expert witnesses testifying concurrently in a courtroom, empowers trial judges by enhancing their comprehension of scientific evidence. This Note demonstrates that hot-tubbing is a workable tool to elevate judicial competence and suggests specific instances in which hot-tubbing proves particularly effective, such as in a Daubert hearing, Markman hearing, or a complex commercial litigation jury trial. This Note concludes with a proposed amendment to the Federal Rules of Evidence to bridge the gap of awareness and motivate judges to consider implementing hot-tubbing in their courtrooms.

2.  On Law360 today, Amy Rowe, Taylor Rubinato, and Andrew Tepperman published Prospects and Challenges for Expert Evidence at the UPC.  The authors predict that expert evidence on economic issues, including evidence on the effects of granting an injunction and on damages, will become “highly relevant in the near term,” especially after the CJEU’s decision earlier this year in BSH v. Electrolux (itself the subject of an interesting post this morning on IPKat, titled How has the UPC responded to BSH v. Electrolux over the last three months?)  The authors also note that, given the time it can take to prepare expert reports on damages, counsel may need to think about instructing experts at an early stage.