Tuesday, July 15, 2014

Expert Lied On The Stand - New Trial, Right?

Rembrandt Vision Technologies sued Johnson & Johnson Vision Care for alleged infringement of U.S. Patent No. 5,712,327.  During a two-week jury trial, the Court granted judgment as a matter of law in favor of Defendant based on defects in one of the Plaintiff's expert's testimony.  The jury had also found in Defendant's favor.  After the jury ruled against it, Plaintiff filed a motion asking for discovery and to reopen the case because one of Defendant's expert's had apparently lied on the stand -- he said he conducted a test when he had not personally done so and he had not told the truth about his qualifications.  The Court denied the request for discovery into this matter.  That decision (granting judgment as a matter of law and denying Plaintiff's request for discovery) was appealed and the Federal Circuit affirmed without reaching the question of whether or not denying discovery for the alleged perjury was proper.  See Rembrandt Vision Technologies, LP v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377 (Fed. Cir. 2013).

Plaintiff next asked the Court for a new trial pursuant to Fed. R. Civ. P. 60(b)(2) and (b)(3).  For relief under 60(b)(2) (newly discovered evidence), the requesting party must show:
(1) the evidence must be newly discovered since the trial;
(2) due diligence on the part of the movant to discover the new evidence must be shown;
(3) the evidence must not be merely cumulative or impeaching;
(4) the evidence must be material; and
(5) the evidence must be such that a new trial would probably produce a new result.
quoting Waddell v. Hendry Cnty. Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir. 2003).  The Court was satisfied that the plaintiff met the first two elements, but elements (3) through (5) caused problems:
Regardless of the seriousness of Dr. Bielawski's offense, however, Rembrandt still must demonstrate that a new trial would probably produce a different result.  Upon sober reflection, I conclude it cannot do so. ... Rembrandt's lost opportunity to impeach Dr. Bielawski with evidence of his false testimony does not lead to Rule 60(b)(2) relief. ...Having carefully followed the evidence at trial, the Court was unsurprised by the jury's verdict of non-infringement.
It is interesting to also note that the Court conducted a three-hour hearing to address this motion, and specifically noted: "The reader is encouraged to consider the transcript of the three-hour August 2, 2013 hearing, in which counsel and the Court engaged in extensive discussions on this motion.  (Doc. 373)."

The Court turned next to Rule 60(b)(3), seeking relief from a final judgment on the basis of fraud, misrepresentation, or misconduct "by an opposing party."  Ultimately, the Court rejected plaintiff's bid because it could not show that the expert's misconduct was misconduct "by an opposing party" because the Plaintiff couldn't show that the Defendant's counsel knew or should have known of the expert's misconduct:
With the benefit of this type of hindsight [relating to the evidence showing the expert's false testimony], it is tempting to fault [Defendant's] lawyers for not discovering Dr. Bielawski's misconduct.  However, he was apparently successful in convincing [Defendant's] lawyers that he knew the subject matter and that he was going to give truthful testimony.
So, a defense expert lies on the stand and the plaintiff gets no remedy?  The Court was concerned with this perception as well:
The Seventh Circuit has put it aptly:
A motion under Rule 60(b)( often puts to a court a question without a right answer.  The district judge must weigh incommesurables -- the value of finality, the probability that an error affected the outcome of the proceeding, the probability that a second go-round would product a 'better' outcome, the costs of that second proceeding to the parties (and ultimately to society as the finality of judgments is undercut).
(citation omitted).
This is a close and difficult call.  The Court recognizes that this decision could be interpreted as not taking seriously enough the integrity of this Court's proceedings and the importance of truthful witnesses.  The Court could also be accused of treating misconduct by Rembrandt's expert witness more seriously than that of JJVC's.  While this criticism would be understandable, there are other important attributes to be considered and balanced -- finality, respect for the jury's verdict, and whether the ultimate result is just.  I sat through the trial, heard all of the evidence, and have not conducted a lengthy hearing on the Rule 60 motion.  I believe, notwithstanding the serious misconduct by Dr. Bielawski, this was a fair, through imperfect trial.  The jury's verdict is supported by the untainted evidence and should be allowed to stand.
All is not lost, however, for the plaintiff.  The Court has left open other possibilities, including reporting the issue to the U.S. Attorney's Office and requiring Defendant to explain why it should not pay Plaintiff's attorney's fees and costs associated with the investigation into the expert's misconduct.  It is also worth noting that the expert has apparently been sanctioned by his university (including a reduction in pay) and has moved to teach in Korea.

Motion to set aside judgment, denied.
Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., Case No. 3:11-CV-819 (M.D. Fla. July 10, 2014) (J. Corrigan).

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