Last month, Judge Burke struck "a substantial portion" of an expert's infringement report after the expert relied on his own anonymous peer review to prove infringement, without disclosing that he had been the author.
The truth did not come out until the deposition.
The Expert Secretly Relied On His Own Prior Anonymous Writing
Plaintiffs in this action allege infringement only via the doctrine of equivalents, arguing that the differences between the accused drug and the claimed drug are insubstantial. Defendant argues that the differences are substantial, relying in part on a 2016 article showing that the accused drug performs significantly better than the claimed drug.
Plaintiffs' expert reports criticized the 2016 article based on two contemporary peer reviews of that article by two anonymous scientists. The first, Reviewer #1, criticized the data analysis and suggested that “some bias [wa]s present in the interpretation and presentation of the data.” The second, Reviewer #2, offered positive feedback with only “minor” constructive criticisms, such as stylistic changes.
The expert string-cited critical comments from Reviewer #1 and one key comment from Reviewer #2, stating that the medications show "similar behavior." He credited the two reviewers as scientists with "expertise in the field" and relied on their reviews to support his opinion that the differences between the two drugs were insubstantial.
Plot Twist à la Deposition Surprise?
At the expert’s deposition, he revealed that he was Reviewer #2.
Defendant's counsel asked about the expert's involvement with a company whose data was cited in the 2016 article. The expert answered that he had “read about [the company] and their results prior to this case,” and said that he had read the 2016 article “very carefully” at the time it came out. Id. at 9.
Then the truth came out:
[Defendant’s Counsel:] You weren’t a peer reviewer on that Tsiang 2016 article, were you?
[Dr. Engelman:] I did serve as a peer reviewer on that article.
The revelation: the expert admitted that he had peer reviewed the 2016 article, cited his own anonymous peer review in support of his opinion as if it were from an independent scientist, and did not disclose this fact prior to being deposed. He even praised the anonymous Reviewer #2—himself—as having expertise in the field. And, it turns out, Plaintiffs' counsel knew all of this and did not to disclose it.
The Expert Had a Duty to Disclose His Involvement
The Court held that the expert should have disclosed his status as a peer reviewer under Rule 26, which requires a testifying expert to disclose all “facts or data considered by the witness in forming” the expert’s opinion.
The Court held that the expert’s status as a peer reviewer of the 2016 article qualified as "facts or data" within the meaning of Rule 26, and that the expert had "considered" that fact such that it should have been disclosed. According to the Court, the expert “must have ‘reflect[ed] upon’ or ‘use[d]’ his role as reviewer when completing those reports.
The Court found that the omission of this fact from the expert report was a "misleading omission about an important issue in the case."
Sanctions for Strategic Silence
The expert gave two reasons for not disclosing his status as a peer reviewer: (1) he didn’t think that it was pertinent, since he had peer reviewed many articles, and (2) the peer review process keeps reviewers’ identities confidential, so he felt that he could not reveal himself.
The court was unpersuaded, and found that even if the expert “could not have reasonably seen the need to disclose these facts, his counsel (who knew about his status as a peer reviewer prior to his deposition) should have.” Id. at 32.
What would have happened at trial?
This is fascinating to consider:
[W]hen the Court asked Plaintiffs’ counsel if it would have permitted Dr. Engelman to rely on this same “two scientists” smokescreen while testifying on the subject at trial—all with Defendant’s counsel, the Court and the jury none the wiser about the truth—Plaintiffs’ counsel all but conceded they would not have. (June 15 Tr. at 41 (“Your Honor, I don't think we got there, we got to that point, but I understand what you are saying, Your Honor.”)) Of course they would not have. How could the right answer be anything different? If Plaintiffs’ counsel or Dr. Engelman would not have disclosed these facts, then at trial, the factfinder would have been seriously misled into thinking that Dr. Engelman was not one of these two peer reviewers. And that same factfinder could then have been watching Dr. Engelman support the position of these two “other” reviewers by largely echoing the criticism of [the article] Tsiang 2016 made by Reviewer # 1 (i.e., the person who was not him)—all while failing to mention that Reviewer # 2 (i.e., the person who was him) had not made many of those same criticisms. These facts needed to be disclosed.
The Court did not adopt either parties' proposed sanctions.
In considering sanctions under Rule 37, the court found that neither Plaintiffs nor Defendant proposed an appropriate sanction. Plaintiffs had striking just the paragraphs of the expert’s report in which the two peer reviews were mentioned. Defendant sought an adverse jury instruction.
The Court ultimately concluded that neither proposal would both convey the seriousness of the Plaintiffs' discovery violations and avoid distracting the fact finder from the merits of the evidence.
The Court chose instead to strike the entirety of the expert's reports that in any way relate to the 2016 article—an article which was a major point of contention between the experts and which apparently forms one of Defendants' primary arguments against infringement in the action.
[Editor's Note: This is actually the second time the Court has struck an expert opinion from this expert in this action.]