FEDERAL JUDICIAL CENTER

POCKET GUIDE SERIES

Tutorials on 

Science and Technology

Melissa J. Whitney

Federal Judicial Center

2018

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to conduct and stimulate research and development 

for the improvement of judicial administration. While the Center regards the 

content as responsible and valuable, it does not reflect policy or recommendations

of the Board of the Federal Judicial Center.
first printing
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Contents

Introduction, 1

Why Hold a Science Tutorial? 2

Educate the Court, 2

Engage in Effective Case Management, 3

Assist with Gatekeeping, 4

Encourage the Parties’ Cooperation, 5

Promote Settlement, 5

Anticipate the Need for Future Experts, 5

Ground Rules for Science Tutorials, 6

Solicit the Parties’ Input, 6

Select a Format, 7

Determine Who Will Present, 7

Choose Presentation Topics and Request Supporting Written 

Materials, 7

Science Tutors Versus Court-Appointed Experts Under Rule 706, 8

Communication and Coordination with State Judges on Related 

Cases, 9

Other Considerations, 11

Recording Science Tutorials, 11

Limiting Evidentiary Implication to Encourage Candor, 11

Avoiding Gamesmanship and Adversarial Posturing, 11

Holding Patent Science Tutorials Outside of a Markman

Hearing Context, 12

Possible Alternatives to Science Tutorials, 13

Examples of Court Orders Regarding Science Tutorials, 14

Science Tutorial Checklist, 18

References, 21

Tutorials on Science and Technology

1

Introduction

Legal cases increasingly involve complex scientific and technological 

information.

1 For example, mass tort cases that involve exposures to 

chemical agents, pharmaceutical products, or medical devices require that the court understand scientific, medical, and statistical 

principles to evaluate the likelihood of injury associated with exposure. Similarly, in cases involving complex technology, decisions 

about patent infringement often turn on a judge’s or jury’s understanding of scientific or technological issues. Such issues also arise 

in criminal law, where judges must evaluate the scientific validity of 

tools and technologies—such as DNA comparison or brain imaging—to determine the admissibility of certain evidence.

A variety of tools are available to assist judges in managing cases 

involving such sophisticated science and technology. One such tool 

is a “science day,” “education day,” or “technology tutorial.” Judges 

often utilize science days in cases involving pharmaceutical product 

liability claims, and they commonly request technology tutorials in 

patent cases to assist with claim construction. But similar strategies 

can be valuable whenever the merits of a case turn on scientific, 

medical, or technological information. We adopt the term science 

tutorial to encompass this judicial practice more generally. Science 

tutorials have developed as a means to ensure judges have the background needed to understand complex case subject matter. Science 

tutorials provide an opportunity for the parties, experts, or technical 

advisorsto identify and educate the court about scientific issues central to a case or to a set of coordinated or consolidated cases. This 

guide provides an overview of practical considerations to help 

judges plan and conduct science tutorials effectively.2

 

1. See Stephen Breyer, Science in the Courtroom, 16 Issues Sci. & Tech. 4 (Summer 2000) (discussing cases that increasingly require judges to interpret scientific 

data and understand new technologies and emphasizing the importance of 

grounding judicial decision making in sound science).

2. The author would like to thank Joe Cecil and Emery Lee for their helpful 

advice and comments.
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2

Why Hold a Science Tutorial?

Educate the Court

Science tutorials provide an early opportunity for the court to learn 

and ask questions aboutrelevant science and technology prior to deciding substantive disputed issues in a litigation. For example, a

court may request presentations on general scientific principles, key 

vocabulary, how products or technologies are designed to operate, 

or how certain injuries or diseases develop. Science tutorials can also 

be used to explore different scientific theories or science-based assertions raised by the parties. Learning about the relevant science 

outside the context of normal motion practice allows for additional 

time to digest key concepts and provides the court a more fulsome 

view of the science than the views advanced in legal briefs.

Courts should consider holding science tutorials in cases that 

involve recent scientific findings or newer technologies,when scientific assertions are central to claims or defenses, or when scientific 

or technological information is likely to play a large role in later dispositive motions.3 While science tutorials are utilized most frequently in mass tort, product liability, and patent infringement 

cases, science tutorials can also be adapted for better understanding 

complex economic analyses, such as in antitrust cases to review 

principles of market power and monopolization; methods for modeling the impacts of varying compensation structures or calculating 

earnings losses in employment discrimination cases; or standard 

techniques to determine diminished trademark value, goodwill, 

profit loss, or unjust enrichment in intellectual property infringement cases.

4

One example of the effective use of a science tutorial outside a 

typical mass tort or patent litigation context involved a putative class 

 

3. See Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict 

Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges 35 

(Federal Judicial Center 2011) (these are also factors to consider when planning for 

expert discovery and Daubert staging).

4. See J. Gregory Sidak, Court-Appointed Neutral Economic Experts, 9 J. Comp. 

Law & Econ. 2, 359–94 (2013).
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action brought by a legally blind consumer against an online retailer 

of art supplies, alleging discrimination arising from the consumer’s 

inability to purchase art products on the retailer’s website. The court 

scheduled a science day “[t]o address the court’s current lack of 

knowledge about website design and the assistive technologies used 

by the blind.”5 The court further ordered that “experts and demonstrations shall indicate what methods can be used to satisfy plaintiffs’

needs, their costs, advantages and disadvantages, and other relevant 

considerations, such as workable, flexible definitions.” During their 

presentation, plaintiff’s attorneys introduced international technical 

standards for allowing visually impaired individuals to access online 

content and demonstrated the use of screen reading software that 

provides auditory cues aloud to visually impaired users across supported websites. Soon after, the parties reached a settlement in 

which the art retailer agreed to improve its website to conform to 

international accessibility standards for the visually impaired.6

Regardless of the particular subject matter at issue, a science tutorial will likely be more efficient and effective if the court and parties already have an understanding of the basic principles used to 

evaluate scientific evidence. The Reference Manual on Scientific Evidence7 is an excellent resource in this respect.In order to ensure that 

the court’s educational needs are met, irrespective of topic, presenters should provide scientific information to the court in a neutral 

fashion and avoid engaging in overt advocacy.

Engage in Effective Case Management

Judges may consider raising the possibility of a science tutorial with 

the parties early in the litigation, perhaps at the first scheduled case-

 

5. Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 403 (E.D.N.Y. 

2017).

6. See Andrews v. Blick Art Materials, LLC, No. 17-CV-767, 2017 WL 

6542466, at *16 (E.D.N.Y. Dec. 21, 2017). 

7. Reference Manual on Scientific Evidence (National Academies Press, 3d ed. 

2011).
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management or pretrial conference.

8 Early science tutorials can assist with case management by previewing the issues that the court 

will need to manage later in the litigation. The number and complexity of topics raised during a science tutorial can inform the judge 

in setting a case schedule that anticipates the amount and type of 

expert discovery that will be necessary. In addition, science tutorials

conducted at the outset may help the judge decide whether certain 

topics should be “frontloaded” for efficiency—for example, determining whether it would be productive to expedite limited discovery 

and Daubert hearings on general causation. Finally, an early science 

tutorial reduces the likelihood of a late realization that a judge needs

immediate assistance in understanding complex science while faced 

with a discovery dispute or on the eve of hearings or trial.

Assist with Gatekeeping

Science tutorials can introduce information that will be helpful 

when deciding early discovery motions and essential when evaluating the validity and reliability of complex scientific evidence as required by Daubert.

9

 

8. Federal Rule of Civil Procedure 16(c)(2) includes among the list of matters 

for consideration at any Rule 16 pretrial conference “adopting special procedures 

for managing potentially difficult or protracted actions that may involve complex 

issues, multiple parties, difficult legal questions, or unusual proof problems” and 

“facilitating in other ways the just, speedy, and inexpensive disposition of the action.”

9. See Manual for Complex Litigation, Fourth § 23.32 (2004) [hereinafter MCL 

4th] (“In many cases it may be helpful for the court to be educated at the outset 

about the science or technology involved, particularly where the expert evidence 

will involve science and technology that use language foreign to the uninitiated.”); 

Reference Manual on Scientific Evidence, supra note 7, at xiii (“Supreme Court 

decisions during the last decade of the twentieth century mandated that federal 

courts examine the scientific basis of expert testimony to ensure that it meets the 

same rigorous standard employed by scientific researchers and practitioners outside the courtroom. Needless to say, this requirement places a demand on judges 

not only to comprehend the complexities of modern science but to adjudicate between parties’ differing interpretations of scientific evidence. Science, meanwhile, 

advances.”).
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Encourage the Parties’ Cooperation

The court can facilitate early communication, encourage cooperation between the parties, and set a positive tone for any future disputes by ordering that the parties submit a joint proposed agenda 

for a science tutorial and by requiring that all information be presented in a neutral manner. A science tutorial may also provide an 

opportunity to reach consensus on certain scientific principles and 

allow the parties to tailor science-based arguments more narrowly 

in later adversarial proceedings.

Promote Settlement

Science tutorials may help promote settlement by forcing the parties 

to discuss the underlying science on which they will eventually rely.

If the judge also requests that the parties present their differing or 

conflicting scientific theories and other disputed issues, then science 

tutorials may provide a preview of the strengths and limitations of 

the other parties’ science-based claims and defenses. Presentations

during science tutorials may also help identify the scope of discovery 

that will be needed to facilitate productive settlement discussions in 

the future.

Anticipate the Need for Future Experts

The number of directly conflicting views presented by the parties or 

their experts during a science tutorial may inform the court about 

whether an independent expert might be warranted later for on-record testimony pursuant to Federal Rule of Evidence 706.10 A science 

tutorial could alert the court to the presence of exceptional circumstances such that a technical advisor might be needed, might help 

define or limit the role of court-appointed experts when they are 

 

10. Laural L. Hooper, Joe S. Cecil & Thomas E. Willging, Federal Judicial Center, Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts 

in the Breast Implants Product Liability Litigation 7 (2001) (citing Hall v. Baxter 

Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996) (following tutorial day on complex science, the court appointed four technical advisors)).
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6

needed, or might make unnecessary the court’s appointing of technical advisors or experts altogether. 

Ground Rules for Science Tutorials

No federal rules or procedures mandate a particular framework for 

science tutorials. Judges can consult with the parties and consider a 

variety of formats tailored to the science or technology at issue. In 

2007, the American Bar Association revised its Civil Trial Practice 

Standards to include a section on the use of tutorials to assist the 

court. These standards outline several methods by which a judge

may permit or require pretrial (or trial) tutorials to educate the court

on technology or complex scientific subject matter. While the ABA 

Civil Trial Practice Standards are oriented somewhat toward on-record, in-court tutorials, they provide some useful guidance for offrecord science tutorials as well. An overview of both these standards

and past judicial practices is provided below. 

Solicit the Parties’ Input

The ABA Civil Trial Practice Standards recommend that the court 

both “invite the parties to express their views on the desirability of 

one or more tutorials” and “invite the parties to suggest the subject 

matter and format of each tutorial.” By seeking the parties’ input on 

the potential format, topics, and presenters for a science tutorial, the 

court can set a tone for cooperation among the parties and ensure 

all key technical concepts are included in the agenda. Recent judicial 

practice comports with the ABA’s recommendations. For example, 

in her order establishing interim procedures following coordination 

of cases in MDL No. 2734, Chief Judge Rodgers ordered that the 

“parties must submit their views regarding whether a scientific 

and/or medical tutorial would be helpful to the court in deciding any 

of the issues involved in this MDL action; and if so, the appropriate 

format.”11

 

11. See In re Abilify (Aripiprazole) Prods. Liab. Litig. (MDL No. 2734), Doc. 

No. 8, Order Establishing Interim Procedures (Oct. 19, 2016).
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Select a Format

A variety of formats are possible, including:

• Live presentations or demonstrations.

• Prerecorded presentations or demonstrations.

• Question-and-answer or panel sessions with the judge asking 

questions.

• Presentations followed by the opportunity for questioning by 

each party.

If the court allows multiple presenters, consider having the presenters speak back-to-back on a particular topic so that the court can 

receive a complete picture of a particular issue at once rather than 

piecemeal throughout the day.

Determine Who Will Present

Presenters can be chosen in a number of ways, including:

• One or more experts selected jointly by the parties.

• One or more experts selected separately by each party.

• Counsel on behalf of each party.

• A combination of counsel and expert presenters.

12

• One or more experts selected by the court.

Choose Presentation Topics and Request Supporting 

Written Materials

Topics to be covered during science tutorials can be tailored by the 

court and the partiesto address both the questions and clarifications 

sought by the judge and any unique circumstances of the litigation. 

 

12. Many possible variations exist. For example, in patent cases, attorneys 

from both sides may give main presentations, with each side’s expert(s) in attendance to be available for questioning by the court. In some formats, each side’s experts engage in a dialogue moderated by the court so that the court can ask questions about technical terminology and also determine areas of agreement and disagreement. See Peter S. Menell et al., Patent Case Management Judicial Guide

§ 5.1.2.2.1 (Federal Judicial Center, 3d ed. 2016). 
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8

For example, topics might include the characteristics, properties, or 

design of a product at issue; the diagnosis and treatment of a condition; causes of a medical condition or outcome; a demonstration of 

how a certain method, software, or product works; an overview of 

key terminology and published scientific literature relevant to the 

claims and defenses in a litigation; or a summary of the research and 

development work or regulatory history surrounding a particular 

product or class of products. 

The court might consider having the parties submit a joint list 

of proposed topics for a science tutorial for the court to consider. 

The court can also request that the parties provide copies of their 

presentations or relevant publications for the court to review in advance. These materials can be used to help the court finalize the topics that should be covered and ensure that the parties focus on scientific principles and not advocacy.

Science Tutors Versus Court-Appointed 

Experts Under Rule 706

If the court chooses to select the presenter(s) for a science tutorial, 

the court should consider asking the parties to nominate potential 

candidates and seek the parties’ consensus, if possible. Where the 

court decides a neutral presenter is needed and the parties’ joint recommendations are insufficient, a number of resources are available 

to help identify independent experts, including leading professional 

organizations, universities, and major medical centers. The American Association for the Advancement of Science (AAAS) also offers 

an expert referral system that can assist judges and arbitrators in 

identifying independent experts for cases that present unique technological issues.13

A judge may rely on several different sources of authority in 

choosing an independent tutor or advisor for a science tutorial, and 

the use of such court-appointed technical advisors has become in-

 

13. See https://www.aaas.org/page/court-appointed-scientific-experts-case

(last visited Mar. 27, 2018); see also MCL 4th § 23.32.
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9

creasingly common. Appointment of a technical advisor is authorized under the inherent power of the court. In addition, Federal Rule 

of Civil Procedure 53 authorizes the appointment of a special master. Finally, Federal Rule of Evidence 706 authorizes the court to appoint a testifying expert for trial. “Many judges prefer to appoint a 

technical advisor as a ‘teaching expert’ to give them a tutorial or 

training session explaining the background scientific techniques and 

findings at issue.”14 For example, in the phenylpropanolamine 

(PPA) MDL proceedings, the transferee judge held a two-day training session with a court-appointed technical advisor and invited 

state judges with related cases to attend.15 The Reference Manual on 

Scientific Evidence similarly notes that federal judges “increasingly 

have used case-management techniques such as pretrial conferences 

to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of specially trained law clerks or scientific special masters.”16

Communication and Coordination with 

State Judges on Related Cases

Science tutorials provide an opportunity to reach out to state colleagues with related cases. An invitation to attend a science tutorial 

may open the door to further coordination on discovery matters and 

case schedules. If state judges are comfortable with collaborating, 

consider holding a joint science tutorial and establishing the format 

and agenda together. Even when other judges are unavailable to attend a joint science tutorial either in person or by videoconference, 

a recorded copy of the science tutorial can be provided to state court 

judges with related cases for their reference.

 

14. Rothstein & Borden, supra note 3, at 39–40.

15. Id.

16. Reference Manual on Scientific Evidence, supra note 7, at 6; see also MCL 

4th §§ 11.483, 11.51, and 23.32. 
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There are a number of recent examples of successful state and 

federal court coordination for science tutorials. A sample of these 

include:

• In In re Ortho Evra Products Liability Litigation (MDL No.

1742), Judge Katz scheduled a science day in New Jersey 

Federal Court and invited state court judges handling similar cases to attend.

17

• In In re Incretin-Based Therapies Products Liability Litigation (MDL No. 2542), Judge Battaglia, transferee judge for 

the MDL, and Judge Highberger, state transferee judge for 

the California Judicial Council Coordination Proceedings 

(JCCP), held a joint science day. The parties submitted a 

joint protocol for science day that outlined the agreed-upon

issues to be discussed, the attorneys who would be designated as presenters, and the outstanding issues that remained—for example, whether the parties should submit 

“Science Background Papers” to the judges in advance.18

• In In re Bextra and Celebrex Marketing Sales Practices and 

Product Liability Litigation (MDL No. 1699), Judge Breyer, 

New Jersey State Court Judge Higbee, and New York Supreme Court Judge Kornreich jointly attended a science day 

in the U.S. district court in San Francisco, “in which a science tutorial on causation issues involved in the litigation 

was presented for the benefit of the three judges overseeing 

the cases in different jurisdictions.” While science day was 

an official, transcribed proceeding, it was not a hearing or 

motion and was only recorded for informational purposes 

for the judges’ later use.19

 

17. See Rothstein & Borden, supra note 3, at n.54.

18. See In re Incretin-Based Therapies Prods. Liab. Litig., Case No. 3:13-md02452-AJB-MDD (Nov. 13, 2013), https://www.casd.uscourts.gov/Fallbrook/files/

13md2452/doc1/190.pdf (parties’ joint submission regarding science day).

19. See N.J. Lawyer, Aug. 2011, at 4.
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Other Considerations

Recording Science Tutorials

Videotaping or transcribing science tutorials allows the court to review the science or technology at issue as needed over the course of 

the entire litigation.20 In addition, a videotape or recording can also 

be made available to courts of appeals, transferor courts upon remand, or state courts with related cases whenever it might be of assistance.

21

Limiting Evidentiary Implications to Encourage 

Candor

To encourage candor, the court should consider directing that science tutorials be conducted off-record and having the parties stipulate that statements made will not bind the parties or be used in later

proceedings. An informal review of science days suggests that they 

are usually held without cross-examination or sworn statements. 

The court should consider ordering that any statements made during science tutorials will not be used in subsequent Daubert hearings 

as evidence.

Avoiding Gamesmanship and Adversarial Posturing

The court should reiterate as needed that science tutorials should 

remain educational and should not digress into a “battle of the experts” or a “Daubert hearing dress rehearsal.” In particular, the court

should anticipate that the parties may attempt to insert advocacyoriented opening statements, data interpretations, or conclusions 

into presentations. Plaintiffs’ counsel may attempt to focus on severe 

injuriesinstead of the underlying science to garner sympathy or suggest that defendants have engaged in improper behavior that is not 

 

20. See MCL 4th § 33.23.

21. See ABA Civil Trial Practice Standards 14–15 (2007 ed.) (citing Altera 

Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1093 (9th Cir. 2005) (Rymer, J., concurring)).
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12

relevant to the scientific issues and theories involved in the litigation. Defense counsel may attempt to discredit or exclude science 

that is not favorable to its position or introduce proprietary data that 

is not publicly available and better-suited for post-discovery hearings than foundational tutorials on science. Both parties may try to 

present arguments and litigation themes masked as scientific principles. 

Holding Patent Science Tutorials Outside of a 

Markman Hearing Context

Tutorials in a patent context are most often provided in proceedings 

surrounding Markman hearings on claim construction.

22 However, 

earlier science tutorials that center on understanding key technology 

or terminology may also benefit the court. A majority of courts tend 

to find that the most opportune time to hold Markman hearings is 

before the close of fact discovery and prior to expert discovery.

Courts may defer Markman hearings until the completion of expert 

discovery or may hold joint claim construction and summary judgment hearings (particularly when patent claim construction proves 

to be claim or case dispositive) or settle claim construction disputes 

before trial, during trial, or when setting jury instructions.23 In contrast to traditional claim construction technology tutorials, an earlier overview on technologies may aid the court in understanding 

infringement contentions and in making fact discovery and casemanagement decisions. Science tutorials may also help the parties 

bring disputed claim terms to the surface, assist the court and parties 

in narrowing the number of claims to be construed, and provide 

guidance for determining the most appropriate timing for holding 

later Markman hearings (and claim construction-related technology 

tutorials).

24

 

22. See Menell, Patent Guide, supra note 12, § 5.1.1.

23. See id.

24. Patent Case Management Judicial Guide notes that such tutorials are typically scheduled within two weeks of a Markman hearing. See § 5.1.2.2, Table 5.2.
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Possible Alternatives to Science Tutorials

Where the need for a science tutorial is unclear or hosting an inperson session is not feasible, the court can consider a number of 

alternatives to gain a foundation in or seek clarification regarding 

the scientific or technological subject matter underlying a particular 

litigation. For example, the court might require that the parties file 

a preliminary report or summary of the scientific issues at stake, provide the court with a prerecorded video tutorial, or submit a selected 

number of published scientific studies or background materials that 

the party believes are relevant to the litigation. The court can then 

decide whether a science tutorial, or perhaps a court-appointed expert, is warranted.25

As another option, the court could request that the parties provide a joint glossary of key scientific or technical terms that are likely 

to appear in subsequent hearings and briefings. Scientific treatises 

or other definitive texts on a particular topic may exist from which 

terms can be taken and on which the parties can agree. 

Alternatively, the court could request that the parties each provide an audiovisual recorded tutorial to the court instead of holding 

live presentations.26

As mentioned briefly above, yet another alternative to a science 

tutorial is to appoint a standing technical advisor or a more formal 

expert under Federal Rule of Evidence 706.27

 

25. See In re Viagra (Sildenafil Citrate) Prods. Liab. Litig. (MDL No. 2691), 

Pretrial Order No. 1 (Apr. 12, 2016) (Judge Seeborg ordered both parties to submit 

a position statement of the critical factual and legal issues in the litigation, largely 

scientific in nature, and made clear that these statements would not be binding, 

would not waive claims or defenses, and could not be offered in evidence against a 

party in later proceedings).

26. See, e.g., In re Welding Rod Prods. Liab. Litig. (MDL No. 1535), Case Management Order, Document No. 63 (Dec. 9, 2003) (“The Court has expressed an 

interest in receiving from counsel a general background tutorial on the technical/science issues presented by this litigation. On or before December 22, 2003, 

plaintiffs and defendants shall each present to the Court (and serve on each other) 

an audio/video background tutorial not to exceed one hour in duration.”).

27. See, e.g., Rothstein & Borden, supra note 3, at 35–41 (describing the varying roles of technical advisors, special masters, and court-appointed experts and 
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Examples of Court Orders Regarding 

Science Tutorials

The following cases provide just a few examples of past judicial practice in implementing science tutorials. 

• Comcast Cable Commc’ns, LLC v. Sprint Commc’ns Co., No. 

2:12-cv-00859-JD, Document 143 (E.D. Pa. 2014): “The 

technical and highly complex nature of the patents-in-suit 

already has necessitated a pre-Markman and Markman 

hearing lasting five days, which included technology tutorials presented by counsel for the parties on each of the 

eight patents. At several points during this hearing, the 

Court noted its unfamiliarity with the technology presented. Accordingly, upon consideration of the materials 

provided by the parties after having the benefit of tutorials 

on each of the patents and oral argument on claim construction, the Court concluded that it would be beneficial 

to have the assistance of a technical advisor prior to rendering its claim construction rulings given the complex and 

technical nature of the patents-in-suit. . . . [T]he parties submitted a Joint Report Recommending A.J. Nichols, Ph.D. as 

Technical Advisory on Claim Construction Issues . . . for 

each of the patents in-suit. The Court, after discussing the 

case with Dr. Nichols by telephone, concluded that he is 

completely neutral and has the background and qualifications necessary to address the technical issues in this case. 

Accordingly . . . the Court appointed Dr. Nichols as Technical Advisor on claim construction issues in this case.”

 

noting the importance of expressly defining the scope of their role, the circumstances, if any, in which ex parte communication may be appropriate, and the 

timeframe and compensation to be provided for the engagement); TechSearch, 

L.L.C. v. Intel Corp., 286 F.3d 1360, 1379 (Fed. Cir. 2002) (approving the use of 

court-appointed technical advisors in patent litigation context, contrasting technical advisors with Federal Rule of Evidence 706 court-appointed experts, and listing guidelines for the limited role of technical advisor in fulfilling a “tutoring function and providing technical education and background information in the technology to the court”).
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• In re Abilify Products Liability Litigation (MDL No. 2734), 

Discovery Conference Order No. 1 (Nov. 29, 2016): “The 

purpose of Science Day is not to test the evidence or weigh 

the strength of any scientific theories. Rather, Science Day 

will be conducted in an effort to familiarize the Court with 

the medical science relevant to the litigation, so that the undersigned is in the best position possible to manage the case 

as it proceeds. The goal is to educate the undersigned about 

how Abilify works on the brain and/or body and the scientific theories underlying this litigation. The parties proposed the following parameters for Science Day, which are 

acceptable and adopted by the Court: (1) one hour per side, 

(2) off of the record and not binding on the parties, and 

(3) the presentations limited to scientific evidence equally 

available to all parties. The parties also proposed that the 

presentations be made by the lawyers; however, the Court 

declines this suggestion in favor of presentations by scientists or medical experts. These expert presentations may be 

guided by the attorney presenting the expert, but there will 

be no cross examination by opposing counsel . . . Plaintiffs 

and Defendants will each provide the Court with up to 

twenty relevant scientific articles and jointly file a proposal 

for topics to be covered . . . After reviewing these materials 

and joint proposal, the Court will enter an order outlining 

the topics to be covered. Additionally, Science Day will be 

conducted in open court, but the proceeding is intended to 

be informal and the experts will not be under oath. Any attorney or party may attend either in person or by teleconference. However, no one other than the undersigned, Magistrate Judge Gary Jones, and New Jersey Judge Jim DeLuca 

will be permitted to ask questions of the experts. The 

presentations will be recorded, but the recording will only 

be available to the Court, not the parties.”

• In re Fluoroquinolone Products Liability Litigation (MDL 

No. 2642), Minutes for Status Conference, Science Day Protocol (Sept. 23, 2016): “The parties reported that they 
Tutorials on Science and Technology

16

reached an agreement over the proposed protocol for science day. The parties’ scientists will give powerpoint

presentations about fluoroquinolones and peripheral neuropathy for two hours each, with a lunch break in between. 

The powerpoints will be submitted to the Court prior to science day, but not to the opposing party. The parties proposed that there would be no court reporter, cross examination, or questioning. The Court stated that it would be 

helpful to have a court reporter create a transcript for the 

Court’s use, to allow for continuity among different law 

clerks, but that the transcript would not be an official transcript and could not be ordered. The Court set a tentative 

date for science day for Tuesday, January 17.”

• In re Invokana (Canagliflozin) Products Liability Litigation

(MDL No. 2750), CMO No. 3 (Feb. 23, 2017): “Science 

Day—Counsel shall continue to meet and confer to schedule a date for a Science Day and the parameters concerning 

the presentations. The Court intends to invite state court 

judges presiding over Invokana cases to this Science Day.... 

Counsel shall advise the Court of the exact date by March 

3, 2017 and submit a case management order governing the 

parameters of Science Day.”

• In re Industrial Print Technologies, LLC Patent Litigation

(MDL No. 2614), Order Setting Initial Case Management 

Procedures and Scheduling Conference (Apr. 27, 2015): 

“The parties should be prepared to discuss whether a tutorial prior to the claim construction hearing would be beneficial or helpful, and if so, the timing, format, and scope of 

any such tutorial, and what materials should be presented 

with the tutorial.”

• In re Roundup Products Liability Litigation (MDL No. 

2741), Pretrial Order No. 9, Setting Hearing for Science Day 

(Feb. 2, 2017): “Science Day is intended to offer an informal 

overview of the basic science underpinning the parties’ dispute, with the goal of better preparing the Court to evaluate 
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17

the studies and expert testimony that will be presented during October’s Daubert proceedings. The parties will not be 

permitted to make presentations on the merits, and they 

may not discuss the studies or organizations they agree or 

disagree with. Although each side will make its own presentation, the discussion will be non-adversarial, and parties 

will not be permitted to cite testimony or materials submitted at Science Day later in this or any other proceeding. The 

proceedings will not be part of the record.”
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Science Tutorial Checklist

ü Identify whether a science tutorial may be helpful to the court.

Relevant questions include:

o Does the litigation involve recent scientific findings or a 

new technology?

o Are scientific assertions likely to play a large role when evaluating the merits of claims and defenses?

o Are scientific principles, methods, or technologies likely to 

come into play when deciding later dispositive motions?

o Is thislitigation likely to involve expert testimony regarding 

large-scale, complex data analyses?

o Does the complaint, answer, or other early filings include 

scientific terms or concepts that are unfamiliar to individuals not working in this particular field?

o Does a key claim or defense rest on the feasibility of developing or implementing an alternative design for a technologically complex product or application? 

ü Solicit the parties’ input on the possible format, topics, and 

presenters for a science tutorial.

o Encourage the parties’ cooperation.

o Consider requesting that the parties submit a joint proposed science tutorial agenda and format for the court’s review.

o Emphasize that all information for science tutorials should 

be presented in a neutral manner.

ü Communicate and coordinate with state judges who have related cases regarding a proposed science tutorial.

o Invite state judges to attend.

o Schedule a joint science tutorial when state judges are willing to collaborate.

o Consider developing the science tutorial agenda and format 

in conjunction with state judges.
Tutorials on Science and Technology

19

o After the science tutorial, provide state judges with a copy 

of presentation materials and a transcript or recording of 

the science tutorial for their reference.

ü Determine the format. For example:

o Live presentations or demonstrations.

o Prerecorded presentations or demonstrations.

o Question-and-answersessions with the judge as questioner.

o Panel sessions with one or more experts.

o Presentations followed by the opportunity for questioning 

by each party.

ü Choose the presenters. Possible choices may include:

o One or more experts selected jointly by the parties.

o One or more experts selected separately by each party.

o One or more experts selected by the court.

o Counsel presenters on behalf of each party.

o A combination of counsel and expert presenters.

ü Select the presentation topics. For example, topics might include: 

o Properties and design of a product at issue.

o Diagnosis and treatment of a certain medical condition.

o Demonstration of how a certain method, application, or 

product works.

o Overview of key terminology.

o Summary of scientific literature relevant to claims and defenses.

o History of the research and development of a certain invention.

o Regulatory or labeling history of a certain product or class 

of products.

ü If the court wishes to review materials in advance, request that 

the parties provide copies of the materials that they plan to 

discuss during the science tutorial, including their presentation 

slides or publications referenced therein. 
Tutorials on Science and Technology

20

ü Reiterate as needed that scientific information should be provided to the court in a neutral fashion and that the parties 

should avoid engaging in overt advocacy in this particular setting.

ü Arrange for videotaping, audio recording, and/or transcription of the science tutorial for later reference and use by the 

court as needed.

ü Consider directing that any statements made during science 

tutorials will not be used in subsequent hearings or trials as 

evidence to encourage candor (and less posturing) by the parties 

during presentations.

ü Explore possible alternatives to science tutorials. For example:

o Order that the parties file a preliminary report or summary 

of the scientific issues at stake near the outset of the litigation.

o Have the parties provide the court with a prerecorded video 

tutorial.

o Request that the parties submit a selected number of published scientific studies or background materials relevant to 

the litigation.

o Have the parties prepare a joint glossary of key scientific or 

technological terms.

o Appoint a standing technical advisor (or a court-appointed 

expert when extraordinary circumstances arise).
Tutorials on Science and Technology

References

Joe S. Cecil & Thomas E. Willging, Federal Judicial Center, CourtAppointed Experts: Defining the Role of Experts Appointed Under 

Federal Rule of Evidence 706 (1993)

Civil Trial Practice Standards (American Bar Association, 2007 & 

2011 Update) 

Coordinating Multijurisdiction Litigation: A Pocket Guide for 

Judges (Federal Judicial Center, National Center for State Courts, 

and Judicial Panel on Multidistrict Litigation, 2013)

Manual for Complex Litigation, Fourth (2004) (§ 11.483, Court-Appointed Experts; § 11.51, Court-Appointed Experts and Technical 

Advisors; § 20.3, Related State and Federal Cases; § 23.32, The Initial 

Conference; § 33.23, Defining the Issues in Patent Litigation)

Peter S. Menell et al., Patent Case Management Judicial Guide (Federal Judicial Center, 3d ed. 2016)

Modern Scientific Evidence: The Law and Science of Expert Testimony (2017–2018 ed.)

National Research Council, A Convergence of Science and Law: A 

Summary Report of the First Meeting of the Science, Technology, 

and Law Panel (National Academies Press, 2001) (Chapter 2: Scientific and Technical Evidence in the Courtroom)

Reference Manual for Scientific Evidence (National Academies

Press, 3d ed. 2011)

Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict 

Litigation in Products LiabilityCases:A Pocket Guide forTransferee 

Judges (Federal Judicial Center & Judicial Panel on Multidistrict Litigation, 2011)

21
Tutorials on Science and Technology

22

Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges (Judicial Panel on Multidistrict Litigation 

& Federal Judicial Center, 2009)
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indiana

Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee

Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texas

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California

Judge George Z. Singal, U.S. District Court for the District of Maine

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven 

judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, 

including in-person programs, video programs, publications, curriculum packages for 

in-district training, and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This 

research assists Judicial Conference committees, who request most Center research, in 

developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The Federal Judicial History Office helps courts and 

others study and preserve federal judicial history. The International Judicial Relations 

Office provides information to judicial and legal officials from foreign countries and 

informs federal judicial personnel of developments in international law and other court 

systems that may affect their work. Two units of the Director’s Office—the Information 

Technology Office and the Editorial & Information Services Office—support Center 

missions through technology, editorial and design assistance, and organization and dissemination of Center resources.