What happens when a Contact Lens Expert Witness fails to reveal his testing methodology in his report and reveals it for the first time during cross-examination at trial?
The court, in REMBRANDT VISION TECHNOLOGIES v. Johnson & Johnson, 725 F. 3d 1377 – Court of Appeals, Federal Circuit 2013 dealt with a patient infringement claim.
Shore D Hardness test described in his expert report. JMOL Order, 282 F.R.D. at 658. During cross examination, JJVC’s counsel asked Dr. Beebe whether he had tested a sufficiently thick sample of stacked lenses to comply with the industry-standard Shore D Hardness testing protocols, which required a stack with a thickness of 6 mm or more. Id. at 658-59. Dr. Beebe responded that he had tested a stack of lenses that was 6 mm thick, not 2.54 mm as he had disclosed in his expert report. Id. at 658-59. He testified that the error in his report “might be a typo.” Id. at 659.
JJVC pressed Dr. Beebe on his testing methodology. Despite the “typo,” Dr. Beebe confirmed that he had tested a stack of 24 contact lenses. JMOL Order, 282 F.R.D. at 658-59. JJVC then asked Dr. Beebe how a stack of 24 contact lenses, each with a thickness of .07 mm, could add up to 6 mm. Id. at 659. Dr. Beebe agreed that one would expect such a stack to have a thickness around 1.68 mm. Id.
JJVC then asked Dr. Beebe to confirm that he did not test flat samples of the lens material. JMOL Order, 282 F.R.D. at 659. At that point, 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.” Id. He testified that he performed the Shore D Hardness testing by cutting the lenses into quarters, stacking the lens quarters on a flat surface, and then probing them. Id. at 659-60. This procedure explained how he was able to create a stack of lenses that was 6 mm thick. Id. at 660. None of this procedure was in his expert report. Id. Dr. Beebe claimed that his expert report’s disclosure of the wrong Shore D Hardness test procedure was a “typo.” Id.
The court affirmed the motion to exclude Dr. Beebe’s testimony due to the failure to disclose his testing methodology in his report and stated:
JJVC renewed its motion to exclude Dr. Beebe’s testimony and moved for judgment as a matter of law, and the court granted the motions. JMOL Order, 282 F.R.D. at 657. The court struck Dr. Beebe’s testimony under Federal Rules of Civil Procedure 26 and 37 because his expert report was “woefully deficient” to support his trial testimony. Id. at 663-65. The court also excluded Dr. Beebe’s testimony under Federal Rule of Evidence 702 because nothing in the record established the reliability of the testing methodology that he testified to at trial. Id. at 665-67. Because Dr. Beebe’s struck testimony was the only evidence that Rembrandt advanced at trial to prove that the accused lenses were “soft,” the court granted judgment as a matter of law that JJVC did not infringe. Id. at 668.
The district court did not err in concluding that the late disclosure was not substantially justified. The court rightly found that “[t]here is simply no excuse for Dr. Beebe waiting until cross-examination to disclose his testing procedures.” JMOL Order, 282 F.R.D. at 664. Dr. Beebe submitted his expert report nearly six months prior to trial. Id. at 663-64; J.A. 96. Leading up to trial, the contents of his expert report were the subject of his deposition and were at issue in the pre-trial briefing, including dispositive motions. JMOL Order, 282 F.R.D. at 663-64. JJVC moved to exclude Dr. Beebe’s testimony on the basis that his Shore D testing did not comply with industry standards. Id. at 658. JJVC also moved for summary judgment on the ground that the testing was not sufficient to raise a genuine issue of material fact as to the Shore D Hardness values of the accused lenses. Id. Nevertheless, even though the adequacy of his Shore D Hardness testing methodology was in dispute prior to trial, Dr. Beebe never attempted to supplement his expert report. As the district court observed, “Dr. Beebe thus apparently either did not review his expert report or forgot how he had actually performed the test.” Id. at 664. Nothing in the record indicates that Dr. Beebe’s failure to disclose his testing methodology was substantially justified.