In Florida, the owner of a contact lens patent brought a patent infringement lawsuit against its competitor. After jury ruled in favor for the competitor, the Plaintiff alleged that competitor’s expert witness gave false trial testimony and asked the Court to order a new trial pursuant to Rule 60(b)(2) and 60(b)(3).
Judge Timothy J. Corrigan of the U.S. District Court in Florida said that for purposes of ruling on Plaintiff’s Rule 60 motion, he would assume that the expert witness personally performed his tests and was accurate in his qualifications as an expert—without deciding that Defendant’s expert testified falsely.
The fact that Defendant’s expert witness testified falsely didn’t end the inquiry. The Federal Rules dictate further examination, but make it difficult to upset a jury’s verdict even if misconduct is shown. For the court to grant relief based upon newly discovered evidence under Rule 60(b)(2), a movant must meet a five-part test:
- the evidence must be newly discovered since the trial;
- due diligence on the part of the movant to discover the new evidence must be shown;
- the evidence must not be merely cumulative or impeaching;
- the evidence must be material; and
- the evidence must be such that a new trial would probably produce a new result.
Judge Corrigan stated that since Rule 60(b)(2) relief is an extraordinary remedy, its requirements must be strictly met. Here, Plaintiff satisfied only the first two criteria.
Plaintiff asked Judge Corrigan to set aside the judgment based on the newly discovered evidence that Defendant’s expert lied about his qualifications and about performing tests. The judge noted that there was heightened concern here because Defendant’s expert was a retained expert, solicited and sponsored by Defendant in a patent case in which expert testimony was critical. Further, the matter that he lied about was material to his testimony.
Regardless of the seriousness of Defendant’s expert’s offense, however, Judge Corrigan said that Plaintiff still needed to demonstrate that a new trial would probably produce a different result. The judge didn’t see that happening. The fact that Plaintiff’s lost the opportunity to impeach Defendant’s expert with evidence of his false testimony doesn’t lead to Rule 60(b)(2) relief. Also, there was strong evidence to support Defendant’s non-infringement case without its expert’s testimony.
In reviewing relief under Rule 60(b)(3), Judge Corrigan found that the record supported Plaintiff’s claim argument that a material expert witness testified falsely on the ultimate issue in the case where the defense attorneys knew or should have known of the falsity of the testimony. However, Rule 60(b)(3) relief is not available solely because of the expert’s misconduct, even in the absence of complicity by Defendant or its counsel. In this case, Plaintiff wasn’t prevented from fully and fairly presenting its case—it only lost an opportunity to discredit or eliminate an expert witness who was not required for Defendant to win the case. Judge Corrigan explained that when the trial is examined as a whole, even with Defendant’s expert’s misconduct, Plaintiff wasn’t prevented from making its case. At its core, Judge Corrigan said that Rule 60(b)(3) seeks to redress “judgments which were unfairly obtained…”
After all his analysis, Judge Corrigan still felt that it was “a close and difficult call.” The judge realized his decision “could be interpreted as not taking seriously enough the integrity of this Court’s proceedings and the importance of truthful witnesses. The Court could also be accused of treating misconduct by Plaintiff’s expert witness more seriously than that of Defendant’s.”
Judge Corrigan believed, notwithstanding the serious misconduct by Defendant’s expert, this was a fair, though imperfect, trial. The jury’s verdict was supported by the untainted evidence and should be allowed to stand. Although the judgment shouldn’t be set aside, Corrigan was troubled by the fact that Defendant’s expert witness likely lied on the stand. Even if unwittingly, Defendant sponsored this false testimony and resisted initially when Plaintiff tried to expose Defendant’s expert’s untruthfulness.
While denying Rule 60 relief, Judge Corrigan separately considered whether other actions regarding both Defendant’s expert and Defendant should be taken.
The case was reversed and remanded for a new trial.