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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