The Rejected Option of Contradicting the Other Side’s Expert.

Last week’s lesson was to have testimony in reserve to rebut your own expert, as U.S.D.J. Walls suggested. This week we learn that it is impermissible for one expert to parse the opinions of the other side’s expert. The CAFC in TIVO v. Echostar, (1/31/08) affirmed a ruling that prohibited a defense expert from giving a “criticism of” the opposing expert’s “report or previous testimony.” These courts decided, as an exercise in discretion, that the more germane approach limiting experts to comparing the “prior art …to the claims as construed.” This was a more elegant approach, which “avoided possible jury confusion.”

How this fits within the ‘adversarial’ model for litigation, or stokes the ‘crucible’ for finding the truth is left wanting for a new litigation metaphor. Why not just have the Judge read the experts’ reports to the jury, and save the litigants about $10K per side? Since when it is fair to disallow Doctor X from testifying that ‘the report of the Honorable Doctor Y is, respectfully, a quiver full of errors.’ Indeed, in complex patent cases, with multiple testifying experts, the jury is less confused when Doctor X can tell them, ‘I’m here to contradict what Doctor Y told you,’ and why ‘he’s wrong.’ Otherwise, all the experts opinions can coalesce, especially when the jury is not given the benefit of an expert pointing clearly to the differences and disputes between the competing opinions.