Friday, February 8, 2013

Federal Circuit’s Criticism of Expert Provides no Basis for Late Substitution

The court denied defendant's request to substitute a new expert two weeks before trial due to the Federal Circuit's determination in a related case that the expert had "prevaricated." "[Defendant] cites no case and the Court finds no support for substitution of an expert because that expert's veracity has been called into question. . . . Moreover, it is not apparent . . . that [defendant] is without fault in this matter. By [defendant's] own admission, two courts have previously rejected [the expert's] testimony on credibility grounds. . . . [Defendant's expert's] testimony is crucial to a key dispute in this action. . . . [P]ermitting [defendant] to substitute its expert would cut at the core of this action, requiring additional depositions and a likely delay of trial."

Gilead Sciences, Inc., v. Teva Pharmaceuticals USA, Inc., et. al., 1-10-cv-01796 (NYSD February 6, 2013, Order) (Sullivan, J.).

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