News & Analysis as of

Rare Grant (in Part) of an IPR Motion to Exclude

Motions to Exclude Evidence have been one of the features of inter partes review practice that have, to date, had a less significant effect than expected. Very few motions have been granted, largely because the Board...more

Expert Testimony Must Be Supported by Evidence

Corning Inc. v. DSMIP Assets B.V. - The Patent Trial and Appeal Board (PTAB) issued final written decisions in 10 inter partes review (IPR) challenges. Although early IPR decisions generally have sustained...more

Evidence – Expert Witness Testimony – Grounds for Exclusion

City of Pomona v. SQM North America Corporation - Court Of Appeals, Ninth Circuit Nos. 12-55147, 12-55193 (May 2, 2014) - Under Federal Rule of Evidence (“FRE”) 702, expert witness testimony must meet certain...more

Invalidity Expert Excluded Where Expert Failed to Conduct a Proper Written Description Analysis

Plaintiff Trading Technologies International, Inc. ("TT") moved to strike the invalidity expert report of the defendant, CQG. TT made two arguments its motion: " that Dr. Mellor failed to conduct a proper written description...more

Florida Appellate Court Embraces Daubert Standard And Provides First In-Depth Analysis Under New Law

Last week, the Third District Court of Appeal resolved any questions concerning the applicability of the Daubert standard in Florida following the legislative changes to Florida's evidence code in July 2013. ...more

Toxic Tort and Environmental Litigation: Court of Appeals Revisits and Clarifies Causation Requirements for Expert Opinions

Causation is the crux of any toxic tort litigation. The Court of Appeals’ recent decision in Cornell v. 360 West 51st Street Realty, LLC, No. 16 (N.Y. Mar. 27, 2014) underscores that principle and revisits the causation...more

Is North Carolina a Daubert State? Drum Roll Please...

Yes! North Carolina is now officially a Daubert state, according to a recent decision of the North Carolina Court of Appeals. In State v. McGrady, COA13-330, 2014 WL 211962 (N.C. Ct. App. Jan. 21, 2014), the Court of Appeals...more

En Banc Ninth Circuit Demands That Courts Serve As Gatekeepers For Expert Testimony — Will That Rule Be Extended to Class Actions?...

In the battle over class certification, expert testimony proffered by both plaintiffs and defendants is playing an increasingly important role. The Supreme Court has not yet decided whether the test for admissibility of...more

En Banc Ninth Circuit Adds Teeth To Daubert Gatekeeping Obligation

On January 15, the en banc US Court of Appeals for the Ninth Circuit issued a decision in Barabin v. AstenJohnson, Inc. that significantly strengthened and expanded the gatekeeper role of both trial and appellate courts in...more

Kimberly-Clark v. First Quality: District Court Excludes Expert Testimony on Obviousness for Failure to Include the Opinion on...

Kimberly-Clark Worldwide, Inc. ("Kimberly-Clark) filed a patent infringement action against First Quality Baby Products, LLC ("First Quality") over a variety of patents relating to disposable absorbent products, such as...more

District Court Excludes Royalty Calculation of Defense Expert Where Expert Used an Incorrect Date for the Hypothetical Negotiation

As Cassidian Communications, Inc.'s ("Cassidian") patent infringement case against Microdata GIS, Inc. ("Microdata") moved toward trial, Cassidian moved to exclude the testimony of defendants' expert. The motion to exclude...more

Pennsylvania Continues Trend of Stricter Review of Experts in Product Liability and Toxic Tort Cases

For years, plaintiffs in product liability and toxic tort cases have viewed Pennsylvania's state court system as a favorable forum. Over the past year and a half, however, the Pennsylvania appellate courts have issued...more

Attorney Argument in Preliminary Response Continues to be Trumped by Expert Evidence from Petition

Challenging two patents with a common parent application, Butamax Advanced Biofuels was able to get 28 challenged claims of one Gevo patent and 18 challenged claims of a second into separate trials for inter partes review, in...more

Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

The Maryland Court of Appeals issued an opinion on September 24, 2013, in Josephine Chesson, et al. v. Montgomery Mutual Insurance Co., No. 97, 2013 WL 5311126, -- A.3d --- (Md. Sept. 24, 2013) (Chesson III), finding that,...more

Working with Experts: Are we off the record? (Presentation)

In this Presentation: - Summary of Key Changes in Rule 26 - FRCP 26(a)(2)- Disclosure - Rule 26(b)(4) Trial Preparation: Experts - Checklist of Suggested Practices - Excerpt from Summary of...more

Federal Circuit Finds Flexibility in Admissibility of Expert Testimony on Infringement

In MeadWestVaco Corp. v. Rexam Beauty and Closures, Inc., the Federal Circuit upheld the admissibility of expert testimony that was not fully aligned with the district court’s claim construction. In so doing, the court...more

Robocast v. Apple and Microsoft: Preliminary Surveys Ordered Produced Even Where Expert Did Not Rely Upon Surveys and Had Deleted...

Robocast filed patent infringement actions against Apple and Microsoft. As expert reports were underway, Apple and Microsoft moved to compel undisclosed surveys that were commissioned by one of Robocast's experts. As the...more

Third Circuit Holds that District Court Improperly Excluded Expert Testimony in Securities Fraud Case

The US Court of Appeals for the Third Circuit recently reversed a district court’s decision to exclude expert testimony in a case involving allegations of securities fraud. The court distinguished the loss causation and...more

California Court of Appeal Allows Non-Medical Experts to Opine on Specific Causation in Asbestos

A California Court of Appeal panel recently broadened a plaintiff’s ability to prove specific causation by holding that a plaintiff need not retain a medical professional to opine that the defendant’s product was a...more

Florida Adopts More Stringent Standard For Expert Witnesses

Florida recently joined the federal courts and 40 other states in adopting the Daubert standard for admissibility of expert testimony....more

Legislature Amends Evidence Code Provisions Governing Admission Of Expert Testimony

The Florida Legislature passed House Bill 7015, dealing with expert testimony, which has been signed into law by Governor Scott. Chapter 2013-107, Laws of Florida, amends Florida’s evidence code to conform to Rule 702 of the...more

PK Law Attorney Brian S. Goodman Contributes Tips for the Proper Handling and Presenting of Property Insurance Claims After...

NAPIA Offers Tips for the Proper Handling and Presenting of Property Insurance Claims After Oklahoma Tornadoes - Potomac Falls, Virginia (May 22, 2013) – The devastating tornadoes that ripped through the suburbs of...more

The Use And Misuse Of Expert Testimony In Bad Faith Actions

Modern trials are frequently battles of experts hired by the parties to advocate their respective positions. Bad faith actions are no different. The plaintiff and the insurer will both beat the bushes for claims handlers or...more

Lees v. Carthage College: A Seventh Circuit Decision on the Admissibility of Expert Testimony for the Standard of Care

The Seventh Circuit recently issued two opinions with interesting evidentiary issues. We wrote about the multiple levels of hearsay in Jordan v. Binns, No. 11-2134 (7th Cir. Apr. 4, 2013), last week. And, this week, the...more

Asbestos Alert: Barabin v. AstenJohnson, Inc., et al. Ninth District Court of Appeals, Action #10-36142, 11-35020 (November 16,...

On March 25, 2013, the Ninth Circuit ordered that this case be reheard en banc. The hearing is currently expected to go forward during the week of June 24, 2013 in Seattle, Washington. A decision is expected within three...more

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