New Trial Granted Because Nealy All of the Defendant S Noninfringement Evidence Was Untimely

Written by: Matthew J. Petersen and Jeremy Anapol

TRUDELL MED. INT’L INC. V. D R BURTON HEALTHCARE, LLC

Before Moore, Chen, and Stoll.  Appeal from the U.S. District Court for the Eastern District of North Carolina.

Summary: The district court erred by admitting untimely expert testimony on noninfringement and by refusing to grant a new trial after the jury found noninfringement.

Trudell Medical International (“Trudell”) sued D R Burton Healthcare (“Burton”) for patent infringement.  Burton disclosed expert testimony on noninfringement after the discovery cut-off and less than three weeks before trial.  The district court denied Trudell’s motion to exclude Burton’s late expert testimony and the jury found no infringement.  Trudell moved for a new trial.  The court denied the motion and Trudell appealed.

The Federal Circuit reversed the district court’s decision admitting the untimely expert testimony.  The delay was not harmless because Burton’s expert testimony “constituted nearly all” of its noninfringement evidence and because Trudell was unable to depose the expert before trial.  Separately, the Federal Circuit found the expert testimony deficient under FRE 702 and Daubert because it disregarded the district court’s claim constructions.

Because the district court’s admission of the expert testimony was not harmless, the Federal Circuit reversed the district court’s decision declining to grant a new trial.  The Federal Circuit also granted Trudell’s request to reassign the case on remand because the judge made objectionable statements throughout the trial, including complaints about Trudell’s counsel that the judge made in front of the jury.

Editor: Sean Murray