We got an interesting Daubert opinion from judge Burke yesterday. It's actually not in a patent case, but the issue was neat enough that I'm willing to make an exception to our usual rule.
(Eds. note—I really hate that Daubert is always italicized because its a case name, but the pronunciation is not at all French. I see italics and I get all excited to roll some R's or whatever and then I just sound like the midwesterner I am).
The issue: can an expert report be too polite?
The case involved various disclosures in a business transaction, and the expert in question was an accounting professor opining on whether certain financial disclosures were deficient. Reading through the statements, they do strike me as unusual for an expert report:
“I am uneasy about the fact that there were no disclosures [in the financial statements] about Schratter’s ability to continue to operate as a going concern.”
“I was surprised that the financial statements did not make any mention of a possible impairment of goodwill. . . . Given the financial condition of Schratter in 2014 and its recent financial performance, I would have expected to see some disclosures about an impairment test for goodwill and why no impairment was recorded.”
ECB USA, Inc. v. Savencia, S.A., C.A. No. 19-731-GBW-CJB (D. Del. June 10, 2024) (Mem. Order) (quoting expert report of Ricky Lee Antle).
I mean, you see it right? This sort of language—both personal and measured—is the sort you might expect to hear from your own deeply disappointed accountant, rather than in an expert report. Still, it's tough to say what exactly would be objectionable about it.
The tack defendants chose was to challenge these statements as too non-committal to be helpful to the jury as required by Rule 702. Judge Burke, acknowledging that the language was unusual, denied the motion to exclude:
The Court acknowledges that, having read a lot of expert reports, Antle’s language here does seem unusually passive. One might typically expect an expert to use more definitive or damning language in assessing the actions of the other side (e.g., instead of saying that he or she was “uneasy” or “surprised” about the lack of particular content in a financial statement, an expert might more typically assert that the absence of the content “amounts to a clear violation” of a particular standard or principle). But so far as the Court is aware, there is no rule that says that an expert’s view on a subject needs to be rendered in utterly damning or bombastic language, or even that it needs to amount to a fully dispositive conclusion on a matter . . . And even though it is expressed in somewhat polite wording (e.g., “areas of concern”), Antle’s ultimate viewpoint seems clear enough: he thinks that the absence of this material in the relevant financial statements is potentially problematic, and that this, in turn, could bolster Plaintiffs’ case and hurt Defendants’ case
Id. at 7-8.
It'll be interesting to see how testimony like this might play out in front of a jury. We'll let you know how it goes if we get there.
TTFN
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
