United States: New Trial Granted In View Of Expert's Misconduct Despite JMOL On Unrelated Grounds

Addressing the issue of whether a new trial is warranted in view of an expert's misconduct, notwithstanding a judgment as a matter of law (JMOL) of non-infringement on unrelated grounds, the US Court of Appeals for the Federal Circuit reversed the district court's denial of the motion and remanded for a new trial. Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc. Case No. 15-1079 (Fed. Cir., Apr. 7, 2016) (Stoll, J) (Dyk, J, dissenting). 

Rembrandt sued Johnson & Johnson Vision Care (JJVC) for patent infringement over JJVC's Acuvue Advance® and Oasys® contact lenses. At trial, the parties disputed whether JJVC's lenses satisfied two claim limitations: the "soft" limitation and the "surface layer" limitation. A jury found in favor of JJVC.

It later came to light that both parties' experts engaged in misconduct, but the dishonesty of Rembrandt's witness, Dr. Beebe, played out in front of the jury. Dr. Beebe "imploded" on the stand during cross examination; the court struck his testimony relating to testing conducted to establish that the accused lenses met the soft limitation, because it was so vastly different from his direct testimony and his expert report. When faced with JJVC's motion for JMOL of non-infringement based on the soft limitation, however, Rembrandt cited only Dr. Beebe's stricken testimony in response. The court granted JJVC's JMOL, and the Federal Circuit affirmed ( IP Update, Vol. 16, No. 9).

Later, Rembrandt learned that JJVC's expert, Dr. Bielawski, who presented evidence regarding the surface layer limitation (but not the soft limitation) had testified falsely. Specifically, Dr. Bielawski provided false testimony regarding his background and his personal involvement in the testing done to establish that the accused lenses did not meet the surface layer limitation. Dr. Bielawski also withheld data that contradicted his trial testimony on the surface layer limitation. 

In view of this new information, Rembrandt moved for a new trial under Fed. R. Civ. P. 60(b)(3), which permits a court to "grant a new trial in cases involving 'fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.'" The district court denied Rembrandt's motion because "JJVC's counsel was not complicit in the false testimony and because Rembrandt was not prevented from fully and fairly presenting its case." Rembrandt appealed.   

The Federal Circuit explained that the "fully and fairly" requirement only necessitated a showing that "timely production of the documents would have made a difference in the way Rembrandt's counsel approached the case or prepared for trial." Under this framework, the Court found that Rembrandt had been prevented from fully and fairly presenting its case. In particular, the Court emphasized that JJVC's non-infringement argument at trial centered on the surface layer limitation, and noted that Rembrandt's knowledge of "the weaknesses in JJVC's evidence regarding the surface layer limitation could well have changed the nature of the entire proceedings." The Federal Circuit also found that the district court had erred in requiring proof of JJVC's complicity in Dr. Bielawski's misconduct.   

According to the dissent, with respect to the "fully and timely" presentation point, the district court's ruling was based on JJVC's successful judgment of non-infringement based on the soft limitation. The dissent would have affirmed the district court's ruling because Dr. Bielawski's false testimony on "an entirely different issue" had no bearing on Rembrandt's failure to "produce any credible evidence on one element of its case." The majority, however, was willing to give Rembrandt a second chance on the soft limitation in view of Dr. Bielawski's misconduct. 

The majority adopted a different view of the JMOL, explaining that it had been granted "not because of the merits of JJVC's non-infringement position, but because [the] exclusion of Dr. Beebe's unreliable testimony compelled that result." The majority seemed troubled by the fact that JJVC won based on the malfeasance of Rembrandt's expert, while all along its own expert had engaged in conduct that was "at least as egregious."

Practice Note: At least in some circumstances, expert misconduct can effectively undo a successful and unrelated JMOL motion, giving the moving party another bite at the apple.  

New Trial Granted in View of Expert's Misconduct Despite JMOL on Unrelated Grounds

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