Judge Burke last month addressed a motion to strike portions of an expert report regarding commercial acceptability of a non-infringing alternative.
As set forth in the report, an expert may rely on experience in the industry, but must explain "how that experience leads to the conclusions reached." Here, the expert opined that an alternative was commercially acceptable, but did not set forth why.
Then, when asked for more detail at his deposition, he responded with a snide comment:
[D]uring his deposition, [the expert] very ill−advisedly made things worse when he responded to a question on this subject by flippantly suggesting that he had "no backing" for the conclusion, and had simply "put [it] in on purpose" because Plaintiffs' expert similarly …