Expert’s Failure to Disclose Relied Upon Materials Warrants Mistrial

The court denied defendant's motion to strike the testimony and reports of plaintiff's reverse engineering expert that were based on previously undisclosed EEL and EDS scans, but ordered a mistrial on two patents-in-suit to allow time for curative expert discovery at plaintiff's expense. "At trial, [the expert's] testimony was inconsistent about whether he relied upon the undisclosed scans. . . . The Court finds that [the expert] did rely upon images that were not disclosed with his expert report. . . . It is equally clear that [the expert] did not explain to [plaintiff's] counsel that, in following his usual practice, he had not disclosed all the materials upon which he had relied. . . . Although the nondisclosure was not known by [plaintiff] or its counsel, it is nonetheless the responsibility of counsel to make clear to their experts the scope of applicable disclosure obligations. . . . No sanction less severe than mistrial would give [defendant] what it needs to level the playing field: time. . . . [L]imiting the cost-shifting to the reasonable expenses associated with supplemental expert discovery, rather than to fees and costs related to general preparation for either the first or the second trial, is a relatively limited sanction that takes into account [plaintiff's] good faith."

Samsung Electronics Co., Ltd. v. NVIDIA Corporation, 3-14-cv-00757 (VAED February 29, 2016, Order) (Payne, J.)