Custom Search
Over 10000 Pages Indexed
Your Host
Click here to read about RF CafeKirt
Blattenberger

... single-
handedly
redefining
what an
engineering website
should be.

View the YouTube RF Cafe Intro Video Carpe Diem!
(Seize the Day!)

5CCG (5th MOB):
My USAF radar shop

Hobby & Fun

Airplanes and Rockets:
My personal hobby website

Equine Kingdom:
My daughter Sally's horse
riding business website -
lots of info

•−•  ••−•    −•−•  •−  ••−•  •
RF Cafe Morse Code >Hear It<

Job Board

About RF Cafe©

RF Cafe E-Mail

Opposing Experts & Summary Judgment

Visit IMS Expert Services
Reprinted with permission.

Opposing Experts & Summary Judgment


By Robert Ambrogi


BullsEye: July 2011
IMS ExpertServices™ is the legal industry's premier full-service expert witness provider.



It is a common litigation scenario: One side’s expert makes an assertion while the opposing expert declares the opposite. In such a scenario, when the two experts disagree, is summary judgment still possible?

Summary judgment, after all, requires a judge to conclude that there is no genuine dispute as to any material fact. The question then becomes, if opposing experts assert differing views, is summary judgment ruled out?

Conflicting Experts

Bob Ambrogi, IMS ExpertServices
Robert J. Ambrogi
is a Massachusetts lawyer who represents clients at the intersection of law, media and technology. A news media veteran, he is the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is also internationally known for his writing and blogging about the Internet and technology.
In 2007, the Federal Circuit Court of Appeals answered that very question in a case involving a pharmaceutical patent. In ruling that the district court erred when it granted summary judgment, the court revealed that when two conflicting expert opinions are accepted by the court summary judgment is improper.

At the heart of the In re Gabapentin Patent Litigation case was drug-maker Warner Lambert’s patent covering a process for preparing the active ingredient in the epilepsy drug Neurontin. When several competing drug companies wanted to market generic versions of Neurontin, Warner Lambert filed suit against them.

In the district court, Warner Lambert based its opposition to summary judgment on the results of pH tests performed by its analytical expert. Those results, it argued, countered testing done by defendants’ expert and created a genuine issue of material fact.

The court stated, “Based on the record before us, we conclude that the district court erred in granting summary judgment of noninfringement based on Warner Lambert’s purported failure to meet its burden of proof. The record shows that Warner Lambert proffered sufficient evidence to create a genuine issue of material fact regarding whether the accused products met the [claims] of the ’482 patent.”

In this situation, the existence of two experts with conflicting opinions removed the opportunity for a summary judgment.

And Then There Was One…

If, however, the opinion of one expert or the other is removed from the equation, summary judgment is again viable. In such a case earlier this year, the Sixth Circuit upheld the dismissal of a plaintiff’s claim that benzene exposure caused her cancer.

At issue in Pluck v. BP Oil Pipeline Co. was the exclusion of plaintiff’s expert opinion. The expert’s opinion was based on a differential diagnosis that was unable to either reliably suggest that benzene exposure was the cause of plaintiff’s cancer or rule out other potential causes. Therefore, the defendant filed motions in limine to exclude the expert’s opinion as it failed to meet Daubert standards. When the court of appeals determined that the expert’s testimony had been properly excluded, summary judgment was upheld.

The type of strategy utilized by the defendants in this case was analyzed by Andrew T. Berry and Nicole Corona. Their article enumerates the “tactical advantages in challenging an expert’s admissibility in a summary judgment motion” and further explains that “those advantages can be increased by coupling a motion for summary judgment with a motion in limine to exclude inadmissible expert evidence.”

The combination of a motion for summary judgment with a motion in limine to exclude inadmissible expert evidence is a tool often used by defendants to increase the likelihood of a satisfactory summary judgment. As stated earlier, when two qualified and reliable experts disagree on an issue of material fact, summary judgment is precluded.

Tell us: How have expert opinions influenced your motions for summary judgment?

This article was taken, in part, from a BullsEye article written by Robert Ambrogi.




This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices™. IMS Expert Services is the premier expert witness search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry BullsEye publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464 or visit our website.




Related Pages on RF Cafe
- Expert Testimony Central to Coffee Class Decision
- 10th Circuit Posits 'Unifying Theory' for Daubert Gatekeeping
- Do You Need an Expert to Sue an Expert?
- What the #!$% Is Bitcoin?
- Dilbert Versus Daubert - Which Standard Controls in Patent Design Cases?
- Lack of Expert Leads to Reversal of Patent Case
- Excluding Expert Testimony the Jury Already Heard
- 7th Circuit Excoriates Lawyers, Judges for 'Fear of Science'
- Federal Circuit Ponders Abandoning De Novo Review
- Apple, Samsung Daubert Docs Should Have Been Sealed, Federal Circuit Rules
- When an Expert's Testimony Counters His Own Report
- Fortune Telling & Reliability? An Expert Testimony Enigma
- Can Expert Statements Inadvertently Waive Protection?
- E- Discovery: 10 Strategic Steps for Defensible Search
- The 'Almighty' Federal Circuit? Evolving Patent Policy & Jurisprudence
- A Scientific Weapon for the Courtroom?
- Experts Face Fewer Challenges in Court, Survey Says
- Death of the ITC?
- No Appeal for Expert Witness 'Third Wheel'
- Patent Trolls on Trial?
- To Testify or Not to Testify: Re-Designating An Expert Witness?
- The Future of Predictive Coding (Part II) – Caveats Revealed
- The Future of Predictive Coding - Rise of the Evidentiary Expert?
- Think Before You Click - Facebook’s "Like" Button
- A Siri-ous Affair?
- Denial of Cert in "Junk Science" Case Leaves Lawyers Reeling
- A Peek "Under the Hood" of America Invents
- 10 Predictions for Litigation in 2012
- Attorneys Turn to iPads to Prepare and Question Experts
- Two Mistakes That Can Produce Tragedy in Patent Litigation
- Opposing Experts & Summary Judgment
- Could IBM’s Watson Make Experts Obsolete?
- An Expert's Change of Mind Can Be Shattering
- Why Do They Call Us Expert Witnesses? Part II
- Why Do They Call Us Expert Witnesses? Part I
- Bilski's Lesson: Avoid Abstraction
- Expert Secrecy: An Ethics Dilemma?
- New Federal Rule on Experts Takes Effect Dec. 1, 2010



Posted  7/13/2011
A Disruptive Web Presence

Custom Search
Over 10,000 pages indexed! (none duped or pirated)

Read About RF Cafe
Webmaster: Kirt Blattenberger
    KB3UON

RF Cafe Software

RF Cascade Workbook
RF Cascade Workbook is a very extensive system cascaded component Excel workbook that includes the standard Gain, NF, IP2, IP3, Psat calculations, input & output VSWR, noise BW, min/max tolerance, DC power cauculations, graphing of all RF parameters, and has a graphical block diagram tool. An extensive User's Guide is also included. - Only $35.
RF system analysis including
frequency conversion & filters

RF & EE Symbols Word
RF Stencils for Visio

Product & Service Directory
Personally Selected Manufacturers
RF Cafe T-Shirts & Mugs

RF Cafe Software

Calculator Workbook
RF Workbench
Smith Chart™ for Visio
Smith Chart™ for Excel