Posted on October 6, 2008 2:39 PM |Permalink |TrackBacks (0)

A federal district court in Delaware recently ruled, in a pre-trial order, that unsubstantiated portions of an expert witness's testimony in a patent infringement case were inadmissible.[1] The dispute involved two types of scintillator crystals used for medical purposes. The expert, a research scientist employed by Los Alamos National Security (LANS), stated that the two crystals were "different substances and the difference between their properties are such that they cannot be considered to be equivalent." He based his report, in part, on studies undertaken at the Los Alamos National Laboratory (LANL). LANS operates LANL for the Department of Energy.

The expert's work for LANS dealt with homeland protection and national security. Consequently, his use of government property was severely restricted, and he could not use work-related data in connection with this case. Moreover, he was barred from producing any LANL documents for use in the litigation.

Basing her decision on fundamental principles of fairness, the judge pointed out that confidential data cannot be used "as both a shield and a sword." The expert, who was precluded from sharing his work with the litigants, could not rely on his recollection of that work product in the lawsuit because "there clearly was no principled way to test his recollection and opinion."

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[1] Siemens Medical Solutions USA, Inc. v. Saint-Grobain Ceramics & Plastics, Inc., DC DE, Civ. No. 07-190-SLR, August 20, 2008.

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The Expert Advisor, Working With Experts

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Expert Testimony
Expert Witness
Patent Infringement

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