Friday, October 23, 2009

Expert's Failure to "Originate, Author or Understand" His Own Written Opinions Did Not Warrant Exclusion of Testimony

The court denied plaintiff's motion to exclude the reports and testimony of defendant's technical expert on the grounds that the expert "did not originate, author or understand several of his opinions." "[Plaintiff] cites excerpts from [the expert's] deposition to show that 1) he could not recall exactly how many reports he had signed, 2) did not know which opinions that he had expressed in each of his reports, 3) could not identify the differences between the various reports, 4) did not know that a legal section was added to his third invalidity report, 5) did not understand the difference between 'obviousness' and 'anticipation' with respect to invalidity, 6) was generally unfamiliar with the [patent-in-suit], 7) has a personal relationship with the owners of [defendant's] predecessor, 8) took no part in collecting scales allegedly exhibiting prior art or determining which of those scales should be relied upon in his supplemental report and 9) in at least one instance, examined photographs of a scale and not the scale itself. . . . [A]lthough [the expert's] nervousness, confusion and difficulty answering legal questions may provide grounds to impeach his credibility, they are not grounds to strike him as an expert witness. . . . [The expert] . . . averred that he reached all of the opinions stated in his reports and reviewed all of his reports before signing them. In light of this, it would be up to the jury to decide whether and how much to trust [the expert's] admissible opinions."

Sunbeam Products, Inc. v. HoMedics, Inc., 3-08-cv-00376
(WIWD October 15, 2009, Order) (Crocker, M.J.)

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