Expert Witness

News & Analysis as of

Court Strikes Expert Opinions, No Punishment Intended

Order Granting Takeda’s Motion to Strike, Takeda Pharmaceutical Co. LTD., et al., v. TWi Pharmaceuticals, Inc., Case No. 13-cv-02420-LHK (Judge Lucy H. Koh) - The Northern District Patent Local Rules are specifically...more

Fourth Circuit Rejects EEOC Expert Report Riddled With Errors

We’ve written before on the questionable statistics used by the U.S. Equal Employment Opportunity Commission (EEOC) in other cases, and a recent court of appeals case involving background checks suggests that the EEOC is...more

Proving Your Business Income Loss: Defeating Insurance Company Challenges to Policyholder Evidence

Courts commonly observe that the purpose of Business Interruption or Business Income insurance is to put the policyholder in the same position it would have been in had there been no interruption. The Business Interruption...more

Concussion Litigation: The Next Frontier

By now everyone has heard about the widely reported concussion lawsuits – former professional players suing because they claim to suffer from a form of brain injury, chronic traumatic encephalopathy (CTE), linked to...more

Reduced Deposition Time in Related AIA Proceedings - Petroleum Geo-Services Inc. v. WesternGeco LLC

In an order regarding deposition times for expert witnesses in three related inter partes reviews (IPRs), the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) ruled that total deposition time...more

Suggestive or Descriptive Marks: An “Expert’s” View

On February 28, 2015, the Southern District of New York denied a motion to exclude the testimony and survey of an expert witness regarding whether a trademark was descriptive or suggestive. In Rise-N-Shine, LLC v. Robin...more

Descriptive or Suggestive Marks: An Issue for "Experts"?

On February 28, 2015, the Southern District of New York denied a motion to exclude the testimony and survey of an expert witness regarding whether a trademark was descriptive or suggestive. In Rise-N-Shine, LLC v. Robin...more

Mobile Medical’s Validity Experts Get To Stay Behind The Wheel

As the established gatekeepers with respect to expert testimony, district courts have broad discretion on whether to admit or exclude such evidence. The Vermont district court recently opted to deny patentee defendant...more

Fourth Circuit Finds EEOC's Expert Report Unreliable Under Federal Rules of Evidence

As part of an employer's business in providing integrated services for high level events, it commenced background checks of all prospective employees, including credit checks for positions dealing with "credit sensitive"...more

Fourth Circuit Slaps EEOC for Use of Misleading, Incomplete and Error-Riddled Expert Testimony

Several years ago, the Equal Employment Opportunity Commission set discriminatory use of criminal and financial background checks as a top enforcement priority. These cases are brought under the disparate impact theory,...more

Federal Appellate Court Throws Out EEOC Discrimination Complaint After Expert Accused of “Cherry-Picking” Data

Last week, the Federal Court of Appeals for the Fourth Circuit upheld a district court’s decision granting summary judgment to an employer accused by the Equal Employment Opportunity Commission (EEOC) of racial bias in its...more

Declarant Must Be Made Available for Deposition in the United States - Square, Inc. v. REM Holdings 3, LLC

Addressing the location of a deposition of patent owner’s declarant, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB or Board) concluded that, absent an agreement between the parties to...more

Using Experts In Divorce And Custody Litigation

In family law cases, experts are frequently used. They become part of the team in preparing the case for trial and are often helpful in settling a matter. So what experts are important in a family law case? ...more

Moore v. Getahun: Expert Witnesses

On January 29, 2015, the Ontario Court of Appeal released its widely-anticipated reasons in Moore v. Getahun (2015 ONCA 55). In the lower court’s controversial decision released last year, the court criticized the practice of...more

PTAB Will Not Consider An Expert Report Prepared for Litigation And Created After the Filing of the Petition

In IPR2014-01510, 01511, and 01513, in connection with its preliminary response the Patent Owner Mag Aerospace Industries, LLC, submitted an expert report by its expert in the related litigation. The expert report addressed...more

Ontario Court of Appeal Clarifies Parameters of Communications with Expert Witnesses

The Court of Appeal for Ontario’s January 29, 2015 decision in Moore v. Getahun (Moore) has confirmed that there is nothing improper in counsel reviewing a draft report with an expert witness, and that draft expert reports...more

Chicago Federal Court Bars Expert Testimony Espousing the “Any Exposure” Theory

On December 22, 2014, in a pre-trial ruling, the U.S. District Court for the Northern District of Illinois, in Krik v. Crane Co., et al., No. 1:10-cv-07435 (N.D. Ill. December 22, 2014) barred perennial plaintiff’s expert Dr....more

Litigation Strategy: Avoid the “Selfie” – Let the Expert be the Expert

It’s human nature to think we’re the smartest person in the room or at the table. It’s also human nature, and a trap for lawyers, to feel like you have to prove that point in front of the client. It’s a real pitfall, when the...more

District Court Sanctions Ghostwriting of Expert Reports

A district court in Michigan has strictly enforced the requirement of Rule 26 of the Federal Rules of Civil Procedure that expert witness reports be prepared by the expert witness, and not by counsel. Numatics, Inc. v....more

Unavailability of IPR Witness for Deposition Undercuts Testimony

Testimony from a witness in a prior reexamination, or other, proceeding may be useful information to a party in inter partes review proceedings. The party propounding such testimony should be prepared, however, to produce...more

Like Steve Jobs, Unavailable Witnesses Can Still “Appear” at Trial

In the trial of an antitrust case against Apple, Steve Jobs will come back to life as a key witness—if only in the form of his videorecorded deposition....more

No Cross-Examination of Expert at the Close of Evidence

A.C. Dispensing Equipment Inc. v. Prince Castle LLC - Addressing the appropriate timing of cross-examination of expert witnesses in an inter partes review (IPR), the U.S. Patent and Trademark Office Patent Trial and...more

One Expert In, One Expert Out in Illinois Asbestos Case

An Illinois federal judge recently approved only one of two well-known asbestos experts to testify in a former pipefitter’s asbestos exposure case. U.S. District Judge John Z. Lee of the Northern District of Illinois held...more

Board Declines to Limit Cross Examination

In International Business Machines Corporation v. Intellectual Ventures II LLC, IPR2014-00587, Paper 27 (November 28, 2014), the Board declined to limit the scope of the patent owner’s cross-examination of petitioner’s...more

UPDATE: United States Supreme Court Declines Review of Ninth Circuit Decisions Involving “Any Exposure” Theory and Government...

As reported in our January 2014 edition, the Ninth Circuit en banc affirmed a prior ruling vacating a $10 million jury verdict in an asbestos personal injury action, holding that the Washington federal district court abused...more

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