Monday, January 16, 2012

Experts in the news

Here's an interesting case involving expert testimony gone really wrong: "... With regard to the judge’s finding that the case was exceptional, the Federal Circuit said it was justified by the facts, explaining that MarcTec: “(1) acted in bad faith in filing a baseless infringement action and continuing to pursue it despite no evidence of infringement; and (2) engaged in vexatious and unjustified litigation conduct that unnecessarily prolonged the proceedings and forced Cordis to incur substantial expenses.”

As part of its finding of litigation misconduct, the Federal Circuit cited MarcTec’s reliance on “untested and untestable” expert testimony. “Although we agree with MarcTec that exclusion of expert testimony under Daubert does not automatically trigger a finding of litigation misconduct, and in most cases likely would not do so, we find that the circumstances of this case were sufficiently egregious to support an award of attorney fees,” the court said.

With regard to the judge’s award of expert witness fees, the Federal Circuit concluded that this was within the judge’s “inherent authority” and that the circumstances of the case justified such an award.

“This is particularly true given that: (1) Cordis was forced to incur expert witness expenses to rebut MarcTec’s unreliable and irrelevant expert testimony which was excluded under Daubert; and (2) the amount Cordis was required to expend on experts was not compensable under § 285,” the court explained. “Because MarcTec’s vexatious conduct and bad faith increased the cost of litigation in ways that are not compensated under § 285, we find that the district court did not abuse its discretion in awarding expert fees to Cordis.”

The case is MarcTec, LLC, v. Johnson & Johnson and Cordis Corporation, Case No. 2010-1285 (Federal Circuit, Jan. 3, 2012) ..."

Read the whole article by clicking here.


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