Commercial Litigation and Arbitration

Even If Witness Providing Expert Testimony Has an Interest in the Outcome That Can Be Characterized As Contingent (Here, a Patent Inventor), That Does Not Render the Expert’s Testimony Inadmissible

Mirowski Family Ventures, LLC v. Boston Scientific Corp., 2013 U.S. Dist. LEXIS 15287 (S.D. Ind. Feb. 5, 2013):

Boston Scientific next seeks the preclusion of the testimony of Dr. Morton Mower, one of the inventors of the '119 patent technology, on the subject of infringement of the '119 patent.***

... Boston Scientific argues that Dr. Mower's testimony should be excluded under Federal Rule of Evidence 403 due to his bias as a "contingency fee expert witness." Dr. Mower is not being paid for his testimony in the present litigation. However, according to Boston Scientific, Dr. Mower will receive "compensation" for his testimony due to an agreement with Mirowski that he receives 27% of royalties and damages awards. Boston Scientific contends that such bias requires the exclusion of his testimony.

Characterization of Dr. Mower's relationship with the parties as a "contingency fee expert witness" is not entirely apt. The fact that his "contingency fee" is tied to an agreement with Mirowski wholly unrelated to the provision of expert testimony in litigation is one factor mitigating against Boston Scientific's characterization. However, even if Boston Scientific were correct in its description, Dr. Mower's testimony is not inadmissible. The rule against employing expert witnesses on a contingent fee basis "is a rule of professional conduct rather than of admissibility of evidence." Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988), and "it does not follow that evidence obtained in violation of the rule is inadmissible." Id. Any "bias" arising from Dr. Mower's entitlement to a cut of damages is largely indistinguishable from that of any ethically retained expert, who is him- or herself "not notably disinterested." Id. Boston Scientific is free to inquire into Dr. Mower's interests on cross examination, but any "bias" arising here is insufficient to warrant exclusion.

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