Beware of Firing Your Own Witness Prior to Trial

Orders Granting Certain Motions to Exclude Testimony, Greatbatch Ltd. v. AVX Corp. et al., D. Del. (July 20, 2017) (Judge Leonard P. Stark)

Judge Leonard Stark recently decided several pretrial motions in this medical device patent infringement suit leading up to next month’s jury trial. In the process, he reiterated certain standards for allowing witnesses to testify at trial that future parties should keep in mind.

In one Order, Judge Stark granted Plaintiff Greatbatch’s motion to preclude Defendant AVX from presenting at trial the testimony of a former employee through his deposition. That former employee—Dr. Panlener—had been an employee-turned-consultant of AVX and testified at length in deposition. However, AVX fired him after his depositions, and Dr. Panlener thus became unavailable to testify live at trial. Greatbatch moved to exclude his deposition testimony at trial. Judge Stark granted the motion, finding that it would be unfair to permit Dr. Panlener’s testimony to be used at trial since Greatbatch “has had no opportunity to question him regarding his termination” by AVX. Judge Stark did not ultimately conclude whether AVX “procured” Dr. Panlener’s absence by terminating the relationship, which, under the Federal Rules, would prevent usage of his testimony. But he disagreed with AVX’s contention that it is “entitled” under the Rules to present the deposition testimony and kept it out based on “the Court’s discretion to manage the trial in a manner that is fair to both sides and consistent with all other applicable rules.”

In another Order issued the same day, Judge Stark also limited the trial testimony of one of Greatbatch’s own experts, Prof. Pilgrim. First, he barred Prof. Pilgrim from testifying on the state of mind or intent of AVX or its employees, which he found to be “improper legal conclusions based on unscientific interpretation.” Second, Judge Stark barred Prof. Pilgrim from opining that certain of AVX’s parts infringed. Greatbatch was on notice that some of AVX’s parts were made with primer while others were made without primer (“pre-primer”), yet Prof. Pilgrim did not review or analyze the nonprimer parts, despite acknowledging potential differences. Judge Stark therefore concluded that Prof. Pilgrim “has no evidence from which to conclude that the primer parts he analyzed are representative of the pre-primer parts he also asserts infringe.”

Bottom line: Parties should exercise great caution not to jeopardize introduction of trial testimony because of sudden witness unavailability or lack of support for expert opinions. It can sometimes be tempting to rely on deposition testimony in lieu of live testimony, since (1) there are no surprises, (2) it’s often more difficult to impeach the witness, and (3) the testimony is usually shorter and more focused. However, as Judge Stark made clear, showing that a deponent is no longer affiliated with a party and outside a court’s 100-mile radius is no guarantee, especially where it could be perceived as “unfair” to allow prior testimony to be read at trial. Experts, meanwhile, have the added burden of adequately supporting their opinions in pretrial disclosures, or face the risk that some (or all) opinions will be stricken.