A Blog About Intellectual Property Litigation and the District of Delaware

I've got a real oddball fact pattern for you today. I'm not sure there's a takeaway for your everyday litigation life, but please remember to hug your experts -- you'll be glad you did.

AI-Generated, displayed with permission

The last time the plaintiff in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC (D. Del. May 22, 2023) spoke to their expert was in August 2021 when he submitted a declaration opposing a Daubert motion.

Sadly, he passed the following January.

Unfortunately, no one told the plaintiff.

Amazingly, two months after that the expert consulting firm plaintiff had been working with reached out to see if the expert was still needed. I can only imagine they were hoping for a "no" there, but plaintiff responded that he was still needed for trial and they'd reach out once a date was set.

Somehow, this was the end of that conversation.

I'm just gonna sit here and think about what I've done
I'm just gonna sit here and think about what I've done AI-Generated, displayed with permission

Eventually the trial was scheduled (and rescheduled), and each time the plaintiff reached out to confirm the expert's availability but received no response despite several follow-up attempts.

Plaintiff finally "became suspicious" in January 2023 and did a bit of googling, only to find that the expert had died more than a year earlier. There followed a frantic scramble to find a substitute expert which ultimately culminated in the new expert serving his replacement report earlier this month (about 6 weeks before the scheduled trial) and defendant objecting to the fourth quarter substitution.

Plaintiff moved to substitute the expert. Judge Connolly denied the motion citing plaintiff's "gross negligence" in failing to conduct discovery on the issue -- particularly in light of some earlier assurances that they were available for trial on the scheduled date:

Personal Audio does not really dispute that the failure to communicate with Mr. Heiblim [the expert] and his firm in 2022 to determine his availability for trial in 2023 was grossly negligent. Rather, it tries to distance itself from that failure by blaming it on GLG. It says it is "appalled that GLG never contacted [it] about Mr. Heiblim's passing." And its counsel similarly claims to be "outraged" with GLG and "shocked to learn that [Mr. Heiblim] had passed away almost a year before [counsel] discovered it" through his internet searches in February 2023. But GLG is the agent of Personal Audio and its attorneys; and, therefore, GLG's failures are Personal Audio's failures.

Id. at 7.

The court noted that it need not address prejudice at all, but did add that the specific expert was likely not crucial the plaintiffs case (he was a marketing expert addressing nexus, which other experts touched on as well).

So check in with you expert. Ask about their pets and plants and hobbies and the state of their knees. Your clients will thank you, and its a nice break from the drudgery of daily meet and confers.

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