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Expert Thrown Out After Claiming Major Report "Typos" on Cross

Originally Published in Financial Complexity Made Clear, September 2013

By: David Nolte
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A recently affirmed decision to grant judgment for the defendant as a matter of law highlights the importance of expert testimony that is consistent with previously-disclosed opinions presented in a Rule 26 report. In Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc., the expert's testimony was struck because of critical discrepancies, leaving the plaintiff with no basis for claimed patent infringement.

The technology at issue in this case relates to contact lenses and more specifically, Rembrandt's U.S. Patent No. 5,712,327 ('327 patent). In asserting that Johnson & Johnson infringed the patent, Rembrandt introduced expert testimony to demonstrate that the allegedly infringing product was "soft", defined as "a contact lens having a Hardness (Shore D) less than five." However, the Court found that the "expert's trial testimony did not match the opinions disclosed in his expert report".

The expert's report described the specific procedures utilized to prove the alleged infringing contact lenses were "soft". During direct examination he affirmed those procedures. Yet upon cross examination, when pressed about compliance with industry-standard protocols, the expert changed his testimony. He claimed his sample was actually thicker than his report indicated and thereby consistent with those protocols. He testified that the error in his report "might be a typo."

When further pressed about his failure to test flat samples of the lens material, the expert "suddenly changed course in the middle of cross-examination and testified that he did not follow the procedures listed in his expert report". In order to explain how he achieved the necessary thickness, he described having cut the lens pieces into quarters before stacking them on a flat surface, thereby achieving the necessary thickness with fewer lenses. He once again claimed the failure to describe this procedure in his report as a "typo."

Johnson & Johnson argued that these inconsistencies impaired their ability to prepare their defense to the Rembrandt expert's claims. This was especially notable since Johnson & Johnson elected to attack the above procedures based on industry protocol rather than introduce an opposing expert. Neither the District nor Appellate Court embraced the idea that such inconsistencies could simply be typos. The District Court had concluded that the expert "apparently either did not review his expert report or forgot how he had actually performed the test". The Appellate Court agreed that such conflicts made the expert's report "woefully deficient" to support his trial testimony and excluded it under Federal Rules of Civil Procedure 26 and 37:

  • Rule 26 requires an expert witness' report to contain "a complete statement of all opinions the witness will express and the basis and reasons for them" in order to "provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses."
  • Rule 37(c)(1) states that "An expert witness may not testify to subject matter beyond the scope of the witness's expert report unless the failure to include that information in the report was "substantially justified or harmless.""

The Court also noted that the expert had made no effort to supplement his report despite having offered deposition testimony on his methods and having his procedures questioned as part of a pre-trial motion to exclude his testimony because of its non-compliance with industry protocol.

The Court also cited Federal Rule of Evidence 702 as a basis for exclusion, since nothing in the record established the reliability of the testing methodology that he testified to at trial.

The disclosure obligations described above are not to be taken lightly and a Rule 26 report is no time to cut corners or play hide the ball. With no remaining evidence as to the softness of the product, the case was over and the opportunity to prove infringement lost.

Fulcrum Inquiry regularly assesses damages in intellectual property litigation as a damages expert witness.

David Nolte is a principal at Fulcrum Financial Inquiry LLP with over 30 years experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.

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