Update: Cert. denied 1/17/17 (16-489)
Brief Summary: DC refusal to grant a new trial under FRCP 60(b)(2) (newly discovered evidence) and 60(b)(3) (fraud) after false expert testimony reversed and remanded.
Summary: Rembrandt appealed DC denial of its motion for a new trial under FRCP 60(b)(2) (newly discovered evidence) and 60(b)(3) (fraud) regarding US 5,712,327 relating to contact lenses. The dispute at trial centered on whether JJVC’s Acuvue Advance and Oasys lenses met the “surface layer” and “soft limitations” of the asserted claim. Rembrandt relied on testimony from its expert Dr. Beebe who presented test results showing the accused lenses met the “soft” limitation but “[d]uring cross-examination…drastically changed his testimony regarding the testing methodology he used” and so the DC struck his testimony and granted JMOL that JJVC did not infringe. JJVC relied on its expert Dr. Bielawski to show the “surface layer” limitation was not met and “impugn Dr. Beebe’s credibility.” “After trial, Rembrandt received information suggesting that Dr. Bielawski testified falsely at trial” and following post-trial discovery the parties agreed on this point (the testing was not done by him personally but by students and supervisors, he “had no TOF-SIMS experience whatsoever”, and withheld data). The DC denied Rembrandt’s request, concluding a new trial would probably not produce a new result as required under Eleventh Circuit rules (60(b)(2)), and “JJVC’s counsel was not complicit in the false testimony and  Rembrandt was not prevented from fully and fairly presenting its case” (60(b)(3)). The FC panel disagreed with the DC conclusion, finding the “verdict…irretrievably tainted” by the false testimony that “may well have been critical to the noninfringement verdict”. JJVC argued “Rembrandt had a full and fair trial because Dr. Bielawski did not testify regarding the ‘soft’ limitation” but the FC panel again disagreed since the DC granted JMOL due to Dr. Beebe’s unreliable testimony and the DC judge “acknowledged he may well have responded differently had he been aware at the time of Dr. Bielawski’s false testimony” (Fraige, FC 1993 (defendant forged a prior art document that had been reviewed by witnesses but not the jury)). The FC panel also found the DC erred by requiring JJVC’s counsel to be complicit in the false testimony into order to acknowledge misconduct (which “can cover even accidential omissions” (Anderson, 1st Cir. 1988); Viskase, FC 2001 (expert witness lied about his personal involvement in testing, “sponsoring party” unaware)). The DC decision was therefore reversed and the decision remanded for a new trial. Judge Dyk dissented on the FC panel’s decision regarding both 60(b)(2) (newly discovered evidence) and 60(b)(3) (fraud) (this “decision effectively eliminates this requirement”, JMOL was granted regarding the “soft” limitation).