Federal District Judge David Lawson (E.D. Michigan) dealt with a patent infringement case. The defendant’s expert filed a 64 page report on the issue of invalidity claiming that the 646 patents were obvious. Plaintiff’s counsel moved to strike the expert’s report based on the fact that counsel for the defendant drafted the entire report. At a hearing, counsel for the defendant admitted that they wrote the expert’s report.
The court concluded that FRCP 26 requires a report “prepared and signed by the witness.” The court found that when counsel writes the entire report from “whole cloth” and then asks the expert to sign it, the expert becomes a “highly qualified puppet.”
It is interesting to note that the expert witness only billed for 2-3 hours for reviewing 2,600 pages of deposition transcripts and less than 15 hours actually “developing his opinions.”
NOTE: Counsel in the case had previously filed its invalidity contentions which read word for word exactly the same as the expert’s report.
Judge Lawson held that the defendant had violated Rule 26 and 27 and excluded the expert from the case. One might expect this expert to face cross-examination in future cases about having been found as a “highly qualified puppet” by a federal judge. The name of the case is Numatics Inc. v. Balluff Inc. (E.D. Mich. Dec 16 2014) Lawson, J.
Write a Reply or Comment