Just as Delaware gears up to resume jury trials, Judge Stark has released his post-trial opinion for his first fully remote trial of the pandemic in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS.
The opinion -- long in the manner of all post-trial opinions -- is worth a read in full. But for my money the main takeaway is how large a roll witness credibility appeared to play in the final outcome, as the difficulty in assessing these things has long been an argument against fully remote trials.
As often happens, the infringement case amounted to a battle of the experts, and there does not appear to be any dispute about who won. Somewhat unusually, the plaintiff's expert was a former employee who is currently a professor. Despite this apparent conflict, Judge Stark noted that:
[T]he Court found Dr. Tanbour's testimony to be credible and persuasive. The Court recognizes that he is a former employee of Plaintiffs. Nonetheless, given his credentials and overall experience, as well the especially detailed testing and analysis he conducted in this case, his former affiliation with one side of this case did not undermine the Court's confidence in him or his testimony.
AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS, D.I. 224 at 9 n.3 (D. Del. Mar. 31, 2021).
This opinion was apparently unmoved by the defendant's attacks upon the experts reliability, with Judge Stark noting:
Defendant's attack on Plaintiffs' arguments it characterizes as "based primarily on nothing more than the unsupported testimony of its former employee," i.e., Dr. Tanbour, is unavailing. As the Court has repeatedly stated, it found the testimony of Dr. Tanbour credible and persuasive.
Id. at 84 n.32
By contrast, the defendant's expert appears to have been ... less credible:
As explained in detail already in this Opinion, however, Dr. Abraham was not a POSA and the Court has not placed much weight on his opinions, on any issue.
Id. at 80.
So while it remains to be seen how capable a lay jury is of assessing credibility of remote witnesses, at Least Judge Stark has been able to make a firm determination from afar—something to keep in mind as the Court begins to navigate in-person trials going forward.
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