This is a troubling case involving both plaintiffs and defendants presenting false expert testimony.
Rembrandt v. J&J Vision (Fed. Cir. 2016)
On cross-examination, Rembrand’s technical expert witness Dr. Thomas Beebe “drastically” changed his testimony regarding his methodology for testing whether the accused contact lenses were “soft.” After being called-out by the defense’s expert Dr. Christopher Bielawski, a jury found no-infringement. Post-trial, the district court doubled-down by also granting J&Js motion for JMOL of non-infringement. Bielawski’s testimony may have been particularly damaging – with his statement: “You should not trust Dr. Beebe, and you should throw out his testimony, not in part, but in whole. You should not trust Dr. Beebe.”
After trial, however, the Rembrandt discovered that Bielawski had testified falsely on the stand. Although the court denied post-trial discovery on the issue, Rembrandt used Texas open records law to discover that, although Bielawski had repeatedly testified that he personally conducted XPS and SIMS testing on the products, it turned out that he did not , that he was not even qualified to conduct those tests, and that he withheld results and analysis that would have undermined his opinions. After hearing these allegations, the district court refused to order a new trial or to re-open discovery.
On appeal, the Federal Circuit reversed and remanded – ordering a new trial under Fed. R. Civ. Pro. 60(b)(3) which permits relief from final judgment based upon “fraud, misrepresentation, or misconduct by an opposing party.”
Here, the appellate panel found that Bielawski’s false testimony prevented Rembrandt from “fully and fairly presenting its infringement case. The verdict was irretrievably tainted by Dr. Bielawski’s false testimony and Dr. Bielawski’s and JJVC’s withholding of relevant documents.” The court also found that the false testimony could be attributable to J&J even without a ‘fraud’ finding because 60(b)(3) is operable even in the case of “accidental omissions” and does not even require “proof of complicity” (under 11th Circuit law).
Remanded for new trial.
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Judge Stoll wrote the majority opinion and was joined by Judge Moore.
Writing in dissent, Judge Dyk disagreed on both of the major issues decided by the majority. In particular, the dissent argues that the patentee shouldn’t get another shot because, even without the misconduct it failed to prove infringement (since its expert testimony was struck).
Rembrandt has failed to show how knowledge of Dr. Bielawski’s misconduct would have changed its approach to the “soft” limitation. The JMOL was based entirely on the exclusion of Dr. Beebe’s testimony because of his “abrupt and still unexplained implosion [on the stand]” that “led to the derailment of the trial” on the softness issue.
In addition to not being material, Judge Dyk also argues that the fraud, misrepresentation, or misconduct must be attributable to the party (rather than merely to a witness). The usual rule, according to Judge Dyk, is that false statements by expert witnesses are not attributable to the parties unless the false statements were known to be false by the party who hired the expert.
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I think such a debacle could not happen in a patent trial in London.
I should be interested to hear from an patent litigator who brings cases to trial in both the USA and England, where a typical trial of infringement and validity lasts a week, of which the three middle days (which will determine the outcome) are taken up in cross-examination of the opposed sides’ respective technical experts, on their respective lengthy written reports. From the outset, it is impressed on the experts that their duty lies to the court, not their paymaster. I have myself seen how anything dodgy in the written opinion of the expert results in total collapse of credibility during the trial. Enduring this cross-examination , over a day and a half, is an ordeal, but some experts are “up for it”. In big chemistry cases it might be the leading guy from Oxford against the leading guy from Cambridge. They both have huge reputations to protect.
Of course, the entity judging credibility, the one your expert must convince, is different in London. It is the judge, a man with a degree in science or engineering, who has spent his previous 20 career years as a patent barrister, before stepping up to the bench. Nobody pulls wool over his eyes.
Is there room for such a trial procedure in America? Does anybody want it?
Super weird case.
Wow this is why being truthful (in every circumstance) is so important.
Candor and truthfulness is so important to the judicial system that serious breaches should not be swept under the carpet by analysis of whether the end result was affected by the misconduct. I think both judge and jury would be heavily swayed by the evidence of false statement.
Simon, I think this was really fraud on the court and not the independent act of an expert witness. J&J had to know their expert was not an expert in the subject matter he to which he testified. That explains the result here.
I agree with the result, and disagree with Judge Dyk. My disagreement with Judge Dyk is less about his reasoning, than about a general approach to dealing with fraud/false statement etc. Because there are strong cognitive and institutional biases favoring a finding of immateriality, and because misconduct is a serious problem, I favor retrial or directed judgment rather than trying to argue immateriality if there has been a serious breech.
Presumably, Ned, you would also think that the patent owner committed fraud then as well, as it must have known its expert was also lying?
So why does the patent owner get a new trial to try again, but the defendant does not get to rely on the outcome that resulted from when trial where the patent owner’s expert lied?
If one party acted badly here, then both did.
Jane, good point there. Both parties have unclean hands and the case should be tossed.
Tossing the case is not a “neutral” outcome.
Rehearing the case from scratch is.
If one side only was maleficent – either side – then the “penalty” could be a decision against that side.
Here, both sides now have an opportunity to play it straight up.
There are issues even beyond this case:
“High profile journals are retracting papers by Christopher Bielawski’s University of Texas, Austin, team amid an investigation into scientific misconduct. The moves follow Angewandte Chemie’s retraction of a 2012 paper from Bielawski’s team in January 2015. ‘A former research group member admitted to falsifying and/or fabricating data affecting this article,’ the Angewandte Chemie notice states.”
A pin drop in the ocean of academia “papers”
Besson (among others) is STILL promoting his fallacies.
As I have mentioned previously, attorneys have ethical oaths and boards that can be used to guard against bad behavior – and for good reason, given our proximity and interaction with the law.
But legal academics HAVE NONE – and they not only have an active interaction with the law, they also have an intimate connection with shaping the views of nascent attorneys.
There should be a DOUBLE stiff ethics system for these people.
There should be a DOUBLE stiff ethics system for these people.
So sayeth one of the least credible and most dishonest hacks in the legal world.
Keep up the great whines, “anon.”
You’re a very serious person!
Regarding: whether expert testimony can be attributed to party merely under omission. I know the Fed. Cir. is zany because of the overlap with other circuit case law – but Dennis did Judge Dyk argue that the majority is reading 11th circuit case law wrong or that the 11th circuit case law is wrong and that the Fed Cir is not bound to follow it if that is so.
I think the majority reading of 11th circuit law (if that is truly what it is) is proper: The other grounds in FRCP 60(b)(1) are for “mistake, inadvertence, surprise, or excusable neglect”, (b)(2) for new evidence, (b)(4) judgment void. A lying witness, unknown to the “opposing party”, fits nicely into “misrepresentation” because the witness doesn’t disclose the fact and knows it will misrepresent. The limitation “by the opposing party” limits who can invoke (B)(3), I.E., only the other parties.
Although i see reasonable interpretations for “by opposing party” as restrictive to who actually performs the action. In that case, when the opposing party seeks to enter the experts evidence it is a misrepresentation by assertion. [pseudo negligent hiring of independent contractor theory].
drop by, I find it hard to believe that J&J did not actually know that its expert was not an expert in the subject matter about which he was testifying.
No one defined what “soft” was in the patent? Apparently not.
1. A hydrophilic SOFT gas permeable contact lens comprised of a polymerization product of a composition comprising a polymerizable vinylic siloxane monomer and a hydrophilic vinylic monomer, and having at least 25% water by weight and characterized by high oxygen permeability, SOFTNESS, rebound elasticity and a high degree of clinical performance, said lens comprising a hydrophilic lens body and a tear-wettable surface layer integral therewith, said lens body being comprised of said polymerization product and said tear-wettable surface layer being comprised of polymeric material containing hydroxy acrylic monomer units, and wherein the proportion of hydroxy acrylic monomer units to silicon units in said tear-wettable surface layer is greater than that of said lens body.
US Patent #5,712,327
Wouldn’t the drafter expect the term “soft” to be a potential issue?
Judge Dyk, drum major for the Patent Haters Marching Band and Chowder Society, would have denied a new trial even in light of admitted false testimony by the infringer’s expert. True colors, shining through.
Alleged infringers. 🙂
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