Managing Healthcare Litigation: Three Tips for Making Sure Your Money is Well Spent on Experts: Masimo Corporation v. Philips Electronics North America Corporation, et al., C.A. No. 09-80-LPS-MPT, May 20, 2013

Most healthcare related litigation involves some kind of expert testimony.  It may be used to establish anything from the value of a dissolving physician practice to the standard of care for treating a patient.  This particular case involved alleged infringement of a patent for pulse oximetry products, which  measure hemoglobin levels non-invasively. Judge Thynge issued a report and recommendation excluding key portions of a defendant’s expert testimony.  The excluded testimony sought to establish that an alleged patent infringement caused damages due to lost profits. However, the Court excluded the expert’s testimony due to his expert’s unfamiliarity with the Food and Drug Administration’s requirements regarding approval of this type of medical equipment.  Also, the expert had not interviewed the plaintiff’s customers with regard to

acceptable alternatives that would not infringe on the plainitff’s patent.  The expert was also found to have delegated work to his staff and was shown at deposition to be unfamiliar with supporting documents and other details for his assumptions. This case is a good reminder to scrutinize agreements to engage experts for such litigation and make sure they contain (among other key terms) the following obligations:

  1.  Time on task.  If you are hiring a prestigious or well-credentialed individual, make sure that person will be involved start to finish, not just the person’s staff.
  2. Scope of knowledge.  Nail down as much as possible all the areas the expert must know and spell them out in the engagement agreement.  Identify gaps early in the process.
  3. Deposition preparation.  The expert must spend time preparing by attempting to answer questions the other side is sure to ask.  Time for preparation should be part of the agreement.

WoodyAllensGlassesWoody Allen said 80 percent of success is showing up.  This case reminds those of us who litigate patent cases that the other 20 is having a prepared and knowledgeable expert.  Focus on scrutinizing, negotiating, and including more specifics in experts’ engagement agreements is a good take away from this case for everyone involved in healthcare related litigation.

Masimo Corporation v. Philips Electronics North America Corporation, et al., C.A. No. 09-80-LPS-MPT, May 20, 2013.

Author: Kenneth L. Dorsney, Esq. is a Partner in the Intellectual Property Practice at Morris James LLP.