The 2023 amendments to Federal Rule of Evidence 702 were a game changer. At least they were intended to be. The amendments were meant to resurrect the district courts’ function as bona fide gatekeepers for expert opinions—by establishing that proponents bear the burden of establishing admissibility by a preponderance and by reinforcing that expert opinions must stay within the bounds of what a reliable application of the expert’s basis and methodology would support.
We therefore celebrated last year when the sometimes-recalcitrant Ninth Circuit fully embraced the amended Rule in Englis v. Monsanto Co., 151 F.4th 1040 (9th Cir. 2025), which we called a “masterpiece” in a post entitled “Ninth Circuit Gets On Board With The Rule 702 Amendments.” The court in Englis walked through the history of Rule 702—including the 2023 amendments—and it flagged the “district court’s responsibility to screen expert testimony.” Id. at 1051 (citations omitted).
Maybe we spoke too soon, as it appears that the Ninth Circuit has now taken a step backward. In In Re National Football League’s “Sunday Ticket” Antitrust Litigation, No. 24-5691, 2026 WL 3266788 (9th Cir. Oct. 30, 2026) (to be published in F.4th), the Ninth Circuit reversed a judgment in favor of the defendants on the basis that the district court improperly excluded the plaintiffs’ experts’ opinions. Missing is any acknowledgement of the 2023 amendments (other than in a footnote, which we will get to in a minute). And while, the court cited Englis multiple times, you would never know from the opinion that Englis endorsed and applied the amended Rule.
In In re NFL, a jury awarded substantial antitrust damages against the NFL in favor of a class of commercial television subscribers. The verdict, however, was based in part on experts’ opinions on what the market would have been but for the alleged anticompetitive behavior. Finding the experts’ opinions to be unreliable, the district court later granted the defendants’ motion for judgment as a matter of law. The district court described one expert’s model as “developed based on speculation and ipse dixit opinion,” mainly because the expert measured the professional football television market against an improper yardstick—college football. For the other expert, the district court found that his opinions assumed a competitor that did not exist, among other issues.
We are not antitrust lawyers, and we have no strong view on the admissibility of these opinions. We write instead to emphasize the Ninth Circuit’s apparent backsliding. The backbone of the In re NFL opinion is that expert opinions “are neither unfounded nor unreliable merely because they are impeachable” and that such opinions “are for the jury to weigh at trial.” In re NFL, at *2. Although it is possible to reconcile these views with the 2023 amendments, it seems to us that the district court here identified issues more profound than mere “impeachment.”
Our fear is that the Ninth Circuit, or at least some judges on the Ninth Circuit, have not taken the Rule 702 amendments to heart and believe that admissibility of expert opinions is business as usual pre-2023. The most consequential passage may be footnote 2. The panel noted there that Rule 702 was amended in 2023 to “clarify and emphasize that proffered expert testimony must meet the admissibility requirements of Rule 702 by a preponderance of the evidence.” It quoted the amended text, but then disposed of the issue in one sentence: The parties had not argued, below or on appeal, “that the 2023 amendment makes any difference to our analysis.” Id. at *6 n.2.
This is one of the many places where the panel cited Engilis, which described the amendments as “consistent” with “our precedent.” That framing let the panel rely freely on pre-amendment authority. The opinion’s core reasoning rests on Elosu (2022), Alaska Rent-A-Car (2013), Image Technical Services (1997), Joiner (1997), Kumho Tire (1999), and Daubert (1993). When it came to the newer authorities—Engilis and a 2024 case called Hyer v. City & County of Honolulu—the panel used them mainly to confirm that the older framework still governs.
This caught our attention. The 2023 amendment was widely understood as a response to courts that treated the sufficiency of an expert’s basis, and the application of the expert’s method, as questions of weight rather than admissibility. The In re NFL opinion nonetheless treats the underlying basis of an expert’s opinions and the factual feasibility of those opinions as jury questions once a sufficient foundation is laid. And it does so by citing the pre-2023 line of cases noted above.
True, the panel did not hold that the amendments changed nothing; it sidestepped that issue by noting that no party argued that they did. And, the opinion does maintain a district court’s authority to exclude “wholly speculative” testimony and opinions with too great an “analytical gap.” Ok, fine. But when it comes to a district court’s gatekeeping role, we expect more than that—especially under the current, amended Rule 702.
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