Liar, Damn Liars, and Experts

In Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., [2015-1079] (April 7, 2016), the Federal Circuit reversed and remanded the district court’s denial of a new trial under Rule 60(b)(3).

The Federal Circuit noted that the case returned it following “an unusual set of circumstances.”  At trial the testimony of Rembrandt’s expert, Dr. Beebe was stricken because his testimony changed so dramatically on cross examination.  J&J’s expert, Dr. Bielawski piled on during his testimony, stating several times, and in several ways, that  Dr. Beebe’s testimony should not be trusted.

After trial, Rembrandt received information suggesting that Dr. Bielawski testified falsely at trial, which Johnson & Johnson does not dispute.  Specifically, Dr. Bielawski repeatedly testified that he personally conducted the testing. on JJVC’s accused lenses when, in fact, the testing was conducted by Dr. Bielawski’s graduate students and various lab supervisors.  Moreover, it appears that Dr. Bielawski overstated his qualifications and experience with these testing methodologies.  In addition it appeared that Dr. Bielawski withheld some of the data from the tests.

To prevail on a motion under Rule 60(b)(3) in the Eleventh Circuit, the Federal Circuit said a movant must establish that: (1) the adverse party engaged in fraud or other misconduct; and (2) this conduct prevented the moving party from fully and fairly presenting its case.  The Federal Circuit said that proof that the result of the case would have been different but for the fraud or misconduct is not required; instead, Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.”

The Federal Circuit concluded that the district court clearly erred in finding that Rembrandt had a full and fair opportunity to present its infringement case.