by Dennis Crouch
In January, I covered the Federal Circuit’s divided panel decision in Barry v. DePuy Synthes Cos., 164 F.4th 896 (Fed. Cir. 2026), which reversed a district court’s mid-trial exclusion of two expert witnesses and ordered a new trial. Judge Stark’s majority treated the challenged testimony as a permissible application of the court’s claim construction and treated the survey expert’s methodological problems as questions of weight for the jury. Judge Prost dissented, warning that the majority “contravenes the principles embraced in EcoFactor and the 2023 amendments” to Federal Rule of Evidence 702.
DePuy (a JNJ Subsidiary) has now petitioned for en banc rehearing, and the petition has drawn amicus support from the Chamber of Commerce and National Association of Manufacturers, the Washington Legal Foundation, Lawyers for Civil Justice, and a coalition of the High Tech Inventors Alliance and Software & Information Industry Association. These parties are all interested providing large operating companies with additional tools to limit expert testimony. Barry’s response is due May 15, 2026.
The petition frames the panel disagreement as a structural conflict with the en banc decision in EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025), and argues that the panel has quietly reintroduced the “weight-not-admissibility” framework that EcoFactor and the 2023 Rule 702 amendments were designed to eliminate. The alignment of players underscores the stakes: Judge Stark authored the Barry majority after being one of two EcoFactor en banc dissenters, and Judge Prost’s Barry dissent echoes the panel dissent she wrote in EcoFactor that triggered en banc rehearing there.
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