Misrepresentations in Expert Report Lead to Exclusion of Evidence

An expert witness represents in his expert report that he/she “personally directed” testing and that he/she “prepared and tested” the product when in fact the testing was actually done by personnel of the defendant — what happens with the evidence? Based on a recent ruling by Judge Robinson in Callaway Golf Company v. Acushnet Company, C.A. No. 06-091-SLR, Memo. Order (D. Del. Nov. 20, 2007), such evidence should be excluded.

In that case, the defendant submitted an expert report in support of its invalidity contentions in which the expert represented that he personally directed the preparation and testing of the products. At the deposition of that same expert, he testified that it was actually personnel of the defendant that directed the tests, and that he was not involved at all. The Court found that the expert report did not show any “personal knowledge of any material aspect of the subject matter and cannot be used to confer any indicia of trustworthiness to the test results.” Id. at 2. Therefore the evidence of such testing was excluded.

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