US Appellate Court Orders New Trial After Expert Witness Testifies Falsely

Even though an expert witness is found to have testified falsely, a new trial is not automatic, nor is prosecution for perjury, although there are often consequences, as this US Court of Appeals Federal Circuit case demonstrates.

In Rembrandt Vision Technologies, L.P. vs. Johnson & Johnson Vision Care, Inc. (JJVC), US Court of Appeals Fed. Cir., Apr. 7, 2016, Rembrandt sued JJVC, alleging that its Acuvue Advance® and Oasys® contact lenses infringed its US patent with regard to "surface layer" and "soft" limitations.

At trial, JJVC's chemistry expert witness, Dr. Christopher Bielawski, testified that its lenses did not meet the "surface layer" limitation, but did not testify regarding the "soft" limitation. During his testimony, Bielawski also impugned the credibility of Rembrandt's chemistry expert witness, Dr. Thomas Beebe, several times, at one point describing Beebe's failure to correct allegedly incorrect data as "misleading and tantamount to dishonesty."

Rembrandt had relied solely on the expert testimony of Beebe to prove that JJVC's lenses met both the "surface layer" and "soft" claim limitations. During direct examination, Beebe presented test results to show that the accused lenses met the "soft" limitation, but during cross-examination he drastically changed his testimony regarding the testing methodology he used. Because of the conflict between his testimonies, or in the trial court's words, his "implosion", the district court struck Beebe's trial testimony regarding his testing. As Beebe's testimony was the only evidence that Rembrandt advanced to prove the patent infringement, the district court granted JMOL that JJVC did not infringe.

After trial, Rembrandt received information suggesting that Dr. Bielawski testified falsely at trial. Although the district court denied Rembrandt's request for post-trial discovery, Rembrandt received much of the discovery it sought from Bielawski's employer, the University of Texas. In light of that discovery, the parties do not dispute that Bielawski testified falsely during trial.

Specifically, Bielawski repeatedly testified that he personally conducted XPS and TOF-SIMS laboratory testing on JJVC's accused lenses when, in fact, the testing was conducted by Bielawski's graduate students and various lab supervisors. It seems Bielawski was not even in the country when some of the testing was done.

The post-trial discovery also suggested that Bielawski overstated his qualifications and experience, having been presented to the jury as an expert in TOF-SIMS testing when he actually had no experience in such testing. The discovery also revealed that Bielawski withheld test results and data analysis that would have undermined his opinions and trial testimony, and that JJVC also withheld relevant documents, or at least that JJVC should have known of the relevant documents existence.

Rembrandt moved for a new trial under Fed. Rules of Civil Procedure 60(b)(2) and (3) (newly discovered evidence and fraud). The district court denied Rembrandt's motion, concluding that Rembrandt had not satisfied the requirement that a new trial would probably produce a new result and that, because JJVC's counsel was not complicit in the false testimony, Rembrandt was not prevented from fully and fairly presenting its case.

The majority of the appellate court found the that the district court erred in "requiring proof of [JJVC's] complicity" in Bielawski's false testimony. The verdict was "irretrievably tainted by Bielawski's false testimony" and the withholding of relevant documents by him and JJVC, the majority ruled, ordering a new trial.

Perjury is a crime, although it appears Bielawski was never prosecuted. He did leave the University of Texas, apparently to teach in South Korea.