The Federal Circuit Remands for a New Trial After Finding Untimely Expert Disclosure

"Yes, D R Burton's disclosure of Dr. Collins' testimony was untimely. The district court did not explain how the untimely disclosure was substantially justified or harmless. The Federal Circuit also found Dr. Collin's testimony unreliable under Federal Rule of Evidence 702. The case was remanded for a new trial, excluding Dr. Collins' non-infringement testimony, and reassigned to a different district court judge."

"Trudell owns U.S. Patent No. 9,808,588, which relates to devices for oscillatory positive expiratory pressure (OPEP) therapy. Trudell appealed the district court's decision to allow Dr. Collin's testimony and the denial of a motion for judgment as a matter of law (JMOL) or a new trial on infringement of certain claims of the '558 patent. D R Burton cross-appealed the jury's verdict that the asserted claims were not invalid but withdrew the cross appeal."

"The Federal Circuit reversed the district court's admission of D R Burton Healthcare's expert testimony due to untimely disclosure and unreliability under the Federal Rules of Evidence 702. The case was remanded for a new trial, excluding Dr. Collins' non-infringement testimony, and reassigned to a different district court judge. The Federal Circuit's decision to reassign was influenced by the trial judge's statements, which undermined the appearance of fairness, similar to a previous Fourth Circuit case, Beach Mart, Inc. v. L&L Wings, Inc."

Trudell Medical International owns U.S. Patent No. 9,808,588 for devices used in oscillatory positive expiratory pressure therapy. D R Burton Healthcare defended against infringement and presented Dr. Collin's expert testimony late. The district court admitted the testimony but the Federal Circuit found the disclosure untimely and the testimony unreliable under Federal Rule of Evidence 702. The Federal Circuit reversed admission and ordered a new trial on infringement, excluding Dr. Collin's non-infringement testimony, and reassigned the case because the trial judge's comments undermined the appearance of fairness. The Federal Circuit affirmed the denial of Trudell's JMOL motion given the jury's credibility determinations.

Read at Intellectual Property Law Blog