ExpertServices periodically sends out e-mails that highlight recent key court cases that can
significantly affect the effectiveness of expert testimony, both for the plaintiff and for the
defendant. This latest case involves an expert who contradicted during oral testimony what he
claimed in his written report. The mistake cost the company that hired him as an advocate to
lose their patent infringement claim. I'm guessing the company has initiated a new lawsuit based
on the outcome. Attorney Robert Ambrogi weighs in on the situation.
Reprinted with permission.
When an Expert's Testimony Counters His Own Report
A federal appeals court has come down hard on a soft contact lens
expert who saw fit to change his testimony in the middle of his cross-examination, countering
what he had said in his own expert report.
In Rembrandt Vision Technologies v. Johnson &
Johnson Vision Care, the Federal Circuit Court of Appeals affirmed the lower court's decision
to strike the expert's testimony, thereby eviscerating the only evidence the plaintiff had to
support its claim of patent infringement.
The lawsuit had originated in Florida, where Rembrandt sued Johnson & Johnson Vision Care
(JJVC) alleging that its Advance and Oasis contact lenses infringed Rembrandt's U.S. Patent
No. 5,712,327, covering a soft gas permeable contact lens.
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 order to make its case,
Rembrandt had to prove that the lenses at issue were in fact "soft." To be considered soft,
the parties stipulated, the lenses had to measure less than five on a hardness test known as
Shore D. To establish this fact, Rembrandt relied on the expert testimony of Dr. Thomas Beebe
In his expert report, Dr. Beebe explained that he performed the hardness test by
stacking the lenses around a stainless steel ball and then probing them. He stacked 24 individual
hydrated contact lenses, he wrote, to achieve a thick enough sample to allow full penetration
by a probe that was 2.54 mm in length.
Before trial, JJVC filed a motion asking the judge
to exclude the expert's tests. JJVC argued that his tests had failed to meet industry-standard
protocols, which required probing a thick button of lens material on a flat surface, not around
a steel ball. The court deferred ruling on JJVC's motion until after Dr. Beebe testified at
Sudden Change of Course
On direct examination, Dr. Beebe
reiterated his account of the testing as he had described it in his expert report. However,
on cross-examination, Dr. Beebe began to present a different version of the testing.
The expert's change in testimony began as the attorney for JJVC challenged him on the thickness
of the sample he had tested, suggesting that industry-standard protocols required a stack at
least 6 mm thick, not the 2.54 mm the expert had described. In response, Dr. Beebe said that
he had, in fact, tested a 6 mm stack, not 2.54 mm as he had disclosed in his expert report.
That number, he testified, "might be a typo."
On further cross-examination, the expert
confirmed that he had tested a stack of 24 contact lenses. JJVC's attorney then pressed him
on that point, asking how a stack of 24 lenses, each with a thickness of .07 mm, could add up
to 6 mm. Dr. Beebe agreed that such a stack should have a thickness around 1.68 mm.
lawyer continued to press the expert, asking him to confirm that he did not test flat samples
of the lens material. At that point, according to the trial judge, Dr. Beebe "suddenly changed
course in the middle of cross-examination and testified that he did not follow the procedures
listed in his expert report." Rather, he testified that he had performed the hardness testing
by cutting the lenses into quarters, stacking the quarters on a flat surface to a thickness
of 6 mm, and then probing them. To the extent his report described a different procedure, Dr.
Beebe said, it was a "typo."
Not surprisingly, JJVC renewed its motion to exclude the
expert's testimony and asked the court to enter a final judgment in its favor. The trial judge
granted the motion to strike, ruling that the expert's report was "woefully deficient" and that
"[t]here is simply no excuse for Dr. Beebe waiting until cross-examination to disclose his testing
procedures." With Rembrandt having no other evidence to support its claim, the judge entered
a judgment of non-infringement in favor of JJVC.
Clarity on Appeal
On appeal to the Federal Circuit, Rembrandt asserted that the mistakes in the expert's report
were unintended and did not prejudice JJVC in any way. It also argued that the expert's actual
testing methodology followed industry standard protocols and should have been found to be reliable.
JJVC responded that its ability to prepare for trial was significantly impaired by the expert's
late disclosure of his testing methods and change in testimony. It contended that the trial
judge was correct in ruling that the expert's undocumented testing methodology lacked sufficient
The Federal Circuit showed 20/20 clarity about the outcome of the case,
ruling that the trial judge was correct to strike the expert's testimony and enter judgment
Under Federal Rule of Civil Procedure 26, the court noted, an expert witness
is required to provide a complete statement of his opinions and the basis upon which he reached
them. The rule bars an expert from testimony about matters not covered in the report unless
the exclusion was "substantially justified or harmless."
Here, there was no such justification.
The Federal Circuit noted that the expert had submitted his report nearly six months prior to
trial. The report had been the subject of his deposition and had been discussed extensively
in pretrial motions. Even so, the expert never attempted to supplement his report.
in the record indicates that Dr. Beebe's failure to disclose his testing methodology was substantially
justified," the circuit court said.
The appeals court also rejected Rembrandt's argument
that the expert's late disclosure was harmless. "JJVC prepared its noninfringement defense based
on the methodology disclosed in Dr. Beebe's expert report, and opted to challenge that methodology
rather than introduce competing expert testimony. Nothing during the course of the proceedings
alerted JJVC to the possibility that Dr. Beebe would change his testimony."
the expert characterized the discrepancies in his report as typos, the court stated, "it is
undisputed that the shift in his testimony was both substantive and substantial." This late
change in course "significantly hampered JJVC's ability to adequately cross-examine Dr. Beebe
and denied it the opportunity to develop or introduce competing evidence."
That the court
came down so hard on this soft-lens expert is not surprising. The expert's change of testimony
was far from trivial. However, the case offers a reminder to lawyers and experts alike to review
expert reports in advance of trial and disclose any inaccuracies, changes or "typos."
The case is
Rembrandt Vision Technologies v. Johnson & Johnson Vision Care, No. 2012-1510 (Fed.
Cir., Aug. 7, 2013).
What, if anything, do you think might have alleviated this scenario
on cross-examination or perhaps have prevented it? Did the expert just get thrown off course?
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