As anyone who has read more than a paragraph of what we’ve written knows, this is a forthrightly pro-defense Blog.  It is not our practice to criticize the strategy or tactics of defendants or their counsel.  It’s not that what defendants do is always right, but to us its almost always understandable.

We were all set to make an exception to this rule, however, due to our disappointment in several decisions recently handed down in a Filshie Clip case in Texas:  Those decisions are:  Bulox v. Coopersurgical, Inc., 2025 U.S. Dist. Lexis 35222 (Mag. S.D. Tex. Feb. 27, 2025) (“Bulox I”); Bulox v. Coopersurgical, Inc., 2025 U.S. Dist. Lexis 34275 (Mag. S.D. Tex. Feb. 26, 2025) (“Bulox II”); and Bulox v. Coopersurgical, Inc., 2025 U.S. Dist. Lexis 34274 (Mag. S.D. Tex. Feb. 26, 2025) (“Bulox III”).  It’s not that the results were bad – the Bulox defendants won all three motions – but the reasoning is atrocious.  The Magistrate Judge completely ignored the 2023 amendment to Fed. R. Evid. 702 in denying the plaintiffs’ motions in these three orders.

Instead we were treated to statements such as:

• “[A]s a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”  Bulox I, 2025 U.S. Dist. Lexis 35222, at *5 (quoting pre-amendments decision); Bulox II, 2025 U.S. Dist. Lexis 34275, at *5 (same);  Bulox III, 2025 U.S. Dist. Lexis 34274, at *4-5 (same).

That “bases and sources” merely go to the “weight” under Rule 702 is one of the “incorrect” statements that the 2023 amendments were enacted to stop.  That is a quote originating in a pre-Daubert case, Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987) – one that the 2023 amendments to Rule 702 consider “incorrect.”  For further discussion of this, and other, points we make in this post, see our prior blogposts, here, here, and here, as well as M. Behrens & A. Trask, “Federal Rule of Evidence 702: A History & Guide to the 2023 Amendments Governing Expert Evidence,” 12 Texas A&M L. Rev. 43 (2024); and E. Lasker & J. Leader, “New Federal Rule of Evidence Rule 702:  A Circuit-by-Circuit Guide to Overruled ‘Wayward Caselaw,’” Def. Counsel J. (Summer 2024) (particularly the Fifth Circuit section). 

• “While the district court must act as a gatekeeper to exclude all irrelevant and unreliable expert testimony, ‘the rejection of expert testimony is the exception rather than the rule.’”  Bulox I, 2025 U.S. Dist. Lexis 35222, at *5 (quoting pre-amendments decision); Bulox II, 2025 U.S. Dist. Lexis 34275, at *5-6 (same); Bulox III, 2025 U.S. Dist. Lexis 34274, at *5 (same).

That is another canard that the 2023 amendments were specifically intended to reject.  The “rule” is that the proponent of expert testimony must prove all elements of admissibility by a preponderance of the evidence.  If not, then the testimony is inadmissible; if so, then it can be heard.  One is not an exception to the other – they are two sides of the same coin.

• “Furthermore, ‘[a]s a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.”’  Bulox I, 2025 U.S. Dist. Lexis 35222, at *11 (quoting pre-amendments decisions); Bulox II, 2025 U.S. Dist. Lexis 34275, at *11-12 (same).

There it is again.  The same outdated and incorrect statement from Viterbo, recycled through a different set of pre-amendments caselaw.

• Movants’ “arguments largely relate to the bases of [the expert’s] review decisions, not the underlying methodology, and are therefore more suitable for cross examination.  Bulox I, 2025 U.S. Dist. Lexis 35222, at *11 (citations omitted); Bulox III, 2025 U.S. Dist. Lexis 34274, at *11.

This statement effectively reads recently amended Fed. R. Evid. 702(d) out of the Rule altogether.  The reliability of a would-be expert’s “principles and methods” is addressed by Rule 702(c).  That portion of the Rule was not amended.  Rule 702(d), however, was amended to clarify that the gatekeeping function (and the burden of proof) extend to “the expert’s opinion reflect[ing] a reliable application of the principles and methods to the facts of the case” (emphasis added).  So, no – putative experts do not get a free pass on applying “underlying methodology” to case-specific facts.  That statement is brazenly bogus.

• Movants’ “arguments regarding [the expert’s] document review in reaching his opinion go to the bases and sources of his opinion and therefore, impact the weight, not the admissibility of his testimony. . . .  If these bases and sources are incorrect or incomplete, then Plaintiffs can effectively address those issues on cross-examination.  Bulox II, 2025 U.S. Dist. Lexis 34275, at *12.

That is the same erroneous Viterboesque statement using slightly different phrasing.  “Bases and sources” is just another way of saying “the facts of the case.”  This is yet another way that the Bulox trilogy simply ignores Rule 702(d), which was the one element of the Rule that the 2023 amendments specifically strengthened.

So here we were with three decisions denying all the Bulox plaintiffs’ largely perfunctory Rule 702 challenges to the three defense experts (yay!); but doing so by unnecessarily relying on anachronistic precedent contrary to the 2023 amendments to the Rule (boo, hiss!).  We were all set to write a rare blogpost criticizing defense counsel for jeopardizing the amendments merely to win denial of some motions that were poorly supported in the first place.  See Bulox II, 2025 U.S. Dist. Lexis 34275, at *7-8; Bulox III, 2025 U.S. Dist. Lexis 34274, at *9 (both finding waiver by reason of “inadequate briefing”).

But before we did such a thing, we wanted to be sure.  We have a PACER account and we know how to use it.  So we checked the defense opposition to the three motions in Bulox.  Those were the documents located at docket numbers 142, 144, and 145.  It turns out that the defense briefing in Bulox did not contain any of the incorrect statements about post-amendments Rule 702, nor did it cite to any of the anachronistic decisions cited in the three opinions.  Neither, however, did they emphasize the 2023 amendments and the changes they made.  Thus, it turns out that, while we remain appalled by terrible way that these three decisions reached correct results, we simply cannot blame it on either the defendants or their counsel.  They did not include any improper citations or make any penny-wise-but-pound-foolish arguments in their brief.

Instead, we blame a judicial system that places a low priority on updating outmoded template orders such as the Rule 702 forms that are obviously still being used in that chambers.  But be forewarned − if we do find instances of defense counsel making bad Rule 702 law by relying on bad pre-2023-amendments precedents, we will let you know.  Yes, it is that important.  Remember – “Don’t Say Daubert.”