Expert Thrown Out After Claiming Major Report “Typos” on Cross

A recently affirmed decision to grant judgment for the defendant as a matter of law in Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc. highlights the importance of expert testimony that is consistent with previously disclosed opinions presented in a Rule 26 report. In this matter, the expert’s testimony was struck because of critical discrepancies, leaving the plaintiff with no basis for claimed patent infringement.

Rule 26 requires an expert witness’ report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them” in order to “provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.”

The expert’s report described the specific procedures utilized to prove the alleged infringing contact lenses were “soft”. During direct examination he affirmed those procedures.  Yet upon cross examination, the expert changed his testimony as to the thickness of the sample, suggesting it was higher than previously reported and thereby consistent with industry-standard protocols. He testified that the error in his report “might be a typo.”

When further pressed about his failure to test flat samples of the lens material, the expert “suddenly changed course in the middle of cross-examination and testified that he did not follow the procedures listed in his expert report.” but instead cut into quarters and then stacked the now four times greater number of lens pieces on a flat surface in order to achieve the necessary thickness. He once again claimed the failure to describe this procedure in his report as a “typo.”

The Court determined that such conflicts made his expert report “woefully deficient” to support his trial testimony and excluded it under Federal Rules of Civil Procedure 26 and 37.  The Court also cited Federal Rule of Evidence 702 as a basis for exclusion, since nothing in the record established the reliability of the testing methodology that he testified to at trial. With no remaining evidence as to the softness of the alleged infringing product, the case was over.  


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