Daubert challenger reaps $4.7M in attorney/expert fees

BVWireIssue #112-3
January 18, 2012

Current U.S. patent law permits courts to award attorneys’ fees upon a finding of “exceptional litigation misconduct.”  Although the statute doesn’t expressly provide for an award of expert witness fees, a judge’s “inherent authority” may. That is according to a new decision from the Federal Circuit, which upheld an award of $3.9 million in legal fees and $800,000 in expert witness fees for the defendant in a patent suit. “Although we agree … that exclusion of expert testimony under Daubert does not automatically trigger a finding of litigation misconduct,” the court said, “we find that the circumstances of this case were sufficiently egregious,” including the defendant’s having to incur substantial expense in rebutting “untested” and unreliable expert evidence.

A warning to BV experts? Although the case doesn’t concern a financial expert or evidence, it suggests that “vulnerability to a Daubert challenge can be a problem for the client as well as the expert,” says Dr. Robert Comment, in a follow-up to his BVR webinar last week on the admissibility of DLOM methods under the federal standards. Ultimately, the issue may come down to whether “general acceptance can suffice for admissibility when reliability is otherwise questionable, as I claim is the situation with large DLOMs,” Comment says. “I believe that many [analysts] in the BV community hold a dangerously inflated opinion of the prophylactic value of ‘general acceptance.’”

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