[00:00:00] Speaker 04:
All right.

[00:00:00] Speaker 04:
Our final case this morning is number 15-1079 Rembrandt Vision Technologies versus Johnson & Johnson Vision Tier, Mr. Magnuson.

[00:00:10] Speaker 05:
Good morning.

[00:00:11] Speaker 05:
May it please the court for the record, Eric Magnuson, on behalf of Rembrandt Vision Technologies.

[00:00:16] Speaker 05:
Appellate courts can and do reverse discretionary decisions of the lower courts.

[00:00:22] Speaker 05:
They do so when those courts commit an error of law, make erroneous findings of fact,

[00:00:28] Speaker 05:
or otherwise exceed the bounds of their broad discretion.

[00:00:31] Speaker 05:
This is that case.

[00:00:34] Speaker 05:
Here we have a prevailing party below who, after the fact we have learned, presented a witness who admittedly, there is no dispute about this, committed perjury.

[00:00:46] Speaker 05:
He lied about his qualifications.

[00:00:49] Speaker 05:
He lied about what he did to form his opinions.

[00:00:52] Speaker 05:
He lied about who did the tests which concealed their results.

[00:00:58] Speaker 05:
And based on that, we are entitled to a new trial.

[00:01:02] Speaker 05:
More than that, there was a failure in this case to produce.

[00:01:07] Speaker 04:
He testified, though, only on the coating issue, right?

[00:01:11] Speaker 04:
Pardon?

[00:01:12] Speaker 04:
He testified only on the coating issue.

[00:01:15] Speaker 05:
On the layer issue, yes.

[00:01:16] Speaker 04:
Yes.

[00:01:17] Speaker 04:
He did not testify on the short de-hardness issue.

[00:01:20] Speaker 04:
He did not, Your Honor.

[00:01:23] Speaker 01:
Didn't he testify on Dr. Beebe's credibility?

[00:01:27] Speaker 01:
Didn't he refer?

[00:01:28] Speaker 01:
That was my point.

[00:01:29] Speaker 01:
I just want to make sure you don't sort of give away something that seems important to your case.

[00:01:33] Speaker 05:
Well, I was going to get there, Your Honor.

[00:01:35] Speaker 01:
But you probably ought to get there in response to questions that ask you very directly what he testified to, how it affects.

[00:01:42] Speaker 05:
Thank you for the help, Your Honor.

[00:01:44] Speaker 05:
He castigated Dr. Beebe.

[00:01:46] Speaker 05:
He said that if I had been asked to hear review... Because of what he did on the coding issue.

[00:01:52] Speaker 05:
Right.

[00:01:52] Speaker 05:
He said, if I'd been asked to peer review what he did, I would have said no.

[00:01:58] Speaker 05:
He called him a liar.

[00:01:59] Speaker 05:
He called him incompetent.

[00:02:02] Speaker 05:
That clearly played into the decision of the trial judge to strike Dr. Beebe's testimony on the soft issue.

[00:02:09] Speaker 04:
He was betrayed.

[00:02:09] Speaker 04:
Wait a moment.

[00:02:10] Speaker 04:
Where does the trial judge rely on that?

[00:02:14] Speaker 04:
I think it's a fair inference trial.

[00:02:15] Speaker 04:
Well, but he didn't say that.

[00:02:17] Speaker 04:
He did not.

[00:02:19] Speaker 05:
He did not.

[00:02:23] Speaker 05:
The other error that the trial court made here is that it said, you have to prove complicity.

[00:02:32] Speaker 05:
I have to have evidence of complicity.

[00:02:34] Speaker 05:
He looked, I think, outside of the 11th Circuit.

[00:02:38] Speaker 00:
So you agree that complicity is something the court can consider, right?

[00:02:41] Speaker 00:
Complicity certainly is a factor that the court could consider, right?

[00:02:45] Speaker 05:
I think it's a factor that the court can consider.

[00:02:48] Speaker 05:
I think a fair reading of 60B3 requires some consideration of it, but the 11th circuit stands out among circuits with regard to expert testimony.

[00:02:57] Speaker 05:
Moore's federal practice says that the 11th circuit assumes that there is complicity when expert testimony is presented.

[00:03:07] Speaker 05:
They base that on Hare.

[00:03:08] Speaker 05:
They base that on Bonner.

[00:03:10] Speaker 00:
And I think that that's an error to not assume complicity after assertion.

[00:03:15] Speaker 05:
I think if there is clear and convincing evidence of perjury, and it is of an expert witness that lawyers hire, they direct, they help form the opinions, and then they present them in court, I think in the 11th Circuit, there is an assumption that there is perjury.

[00:03:33] Speaker 00:
So would that equally apply to third person, not complicity?

[00:03:36] Speaker 05:
Well, I'm sorry.

[00:03:36] Speaker 05:
There's complicity, yes.

[00:03:38] Speaker 00:
Did that apply equally to your expert, Dr. Beebe?

[00:03:43] Speaker 05:
Dr. Beebe didn't commit perjury.

[00:03:46] Speaker 05:
He miswrote his opinion.

[00:03:49] Speaker 04:
But he seemed to lie on the sand, didn't he?

[00:03:51] Speaker 05:
Well, he changed the method by which he tested.

[00:03:55] Speaker 05:
Well, he lied about the methodology that he used, no?

[00:03:59] Speaker 05:
Well, Your Honor, I don't believe that that's a fair reading of the evidence.

[00:04:04] Speaker 05:
But it's not the issue here.

[00:04:05] Speaker 05:
The question is whether we were deprived

[00:04:08] Speaker 05:
of full and fair opportunity to present our case because of Dr. Polowski's perjury.

[00:04:14] Speaker 05:
And I think the mistake that Judge Corrigan made was he saw this as a subtraction problem.

[00:04:20] Speaker 05:
He said, okay, Johnson and Johnson had a perjurious witness.

[00:04:24] Speaker 05:
If we take his testimony out of the trial, no change in result.

[00:04:30] Speaker 04:
Because of the short D?

[00:04:31] Speaker 05:
Because of the short D and because of all the other evidence and everything.

[00:04:34] Speaker 05:
And that's a fundamental legal error.

[00:04:37] Speaker 05:
because the test isn't changed the result at trial.

[00:04:42] Speaker 05:
The test is deprived of a full and fair opportunity to litigate.

[00:04:46] Speaker 04:
Yeah, but that's your problem.

[00:04:47] Speaker 04:
He found that there was a full and fair opportunity and that the verdict was supported by untainted evidence.

[00:04:54] Speaker 05:
And he found that only by looking at the box of evidence that is the trial.

[00:04:58] Speaker 05:
You yourself, on the first appeal here, said that if Dr. Beebe had been forthright in testifying

[00:05:07] Speaker 05:
And that had been disclosed beforehand.

[00:05:09] Speaker 04:
He must have been taking into account the perjury when he said that, the opinion that he's dealing with.

[00:05:15] Speaker 05:
Your Honor, it is.

[00:05:16] Speaker 05:
My point in referring to Dr. Beebe and referring to particularly Hare and Rozier out of the 11th now, you look not just at the trial, but you look at how the case evolved.

[00:05:36] Speaker 05:
Dr. Bilowski's perjured testimony came to this case way before trial, and it influenced how the parties prepared for trial.

[00:05:47] Speaker 05:
Hazel Atlas Glass says, when you've got perjury and fraud in a case, you don't go parse exactly how it came out.

[00:05:53] Speaker 01:
How many days was this trial?

[00:05:56] Speaker 05:
It was about two weeks, Your Honor.

[00:05:57] Speaker 01:
About two weeks.

[00:05:59] Speaker 01:
And how much of the trial was devoted to the surface limitation?

[00:06:03] Speaker 05:
A fair amount, Your Honor.

[00:06:05] Speaker 05:
Most.

[00:06:06] Speaker 01:
How much of the trial was devoted to the soft limitation?

[00:06:10] Speaker 05:
Not as much because in the context of what had run up to the trial, it was a relatively minor issue.

[00:06:16] Speaker 05:
In fact, Judge Corrigan said it should have been a layup.

[00:06:19] Speaker 05:
I mean, these are hydrogel lenses.

[00:06:22] Speaker 00:
They are significantly... When you say, I'm sorry to interrupt, but when you say not as much, can you qualify that a little bit or quantify it a little bit?

[00:06:28] Speaker 00:
Do you mean a day, a couple hours, a few minutes?

[00:06:31] Speaker 05:
I can't, Your Honor.

[00:06:33] Speaker 05:
I apologize for that.

[00:06:35] Speaker 05:
My point is this, though.

[00:06:37] Speaker 05:
You're now looking at the trial.

[00:06:39] Speaker 05:
It's the same error that Judge Corrigan made.

[00:06:42] Speaker 05:
Discovery, things that are disclosed in discovery, inevitably impact the preparation for trial.

[00:06:51] Speaker 05:
The 11th Circuit cases are clear on that.

[00:06:53] Speaker 04:
Rozier, Hare.

[00:06:55] Speaker 04:
You would have spent more time on the Short D issue?

[00:06:58] Speaker 05:
Absolutely.

[00:07:01] Speaker 05:
But the point is, under Hazel Atlas Glass, when you've got fraud in a case,

[00:07:05] Speaker 05:
You don't go back and parse that out.

[00:07:07] Speaker 01:
Well, your argument's probably there wouldn't even have been a trial if all of this had come out, because the almost entirety of their defense was the surface limitation, and it was all hinging on Bialski.

[00:07:18] Speaker 01:
The other two experts did no independent testing, right?

[00:07:20] Speaker 01:
Absolutely right.

[00:07:21] Speaker 01:
They just relied on his testing.

[00:07:23] Speaker 01:
So if he's gone and his testing's gone, they've got no, they had no defense left on the surface layer.

[00:07:28] Speaker 05:
Well, they had their own witnesses who'd say we didn't have a coding, and in our mind, you know, coding equal layer.

[00:07:34] Speaker 05:
But you're right.

[00:07:35] Speaker 05:
At a minimum, we would have had a shot at summary judgment, which is why the judge, with all due respect, trial judges try to protect the judgments that their courts render.

[00:07:46] Speaker 05:
And they should.

[00:07:47] Speaker 05:
It should be hard.

[00:07:49] Speaker 05:
On the other hand, he invited the reader of his order to go back and read the transcript of the three-hour hearing on this.

[00:07:56] Speaker 05:
And I think it's very illuminating.

[00:07:58] Speaker 05:
He started off by saying, when I first heard about this perjury,

[00:08:03] Speaker 05:
He described it as sour grapes and cocktail chatter.

[00:08:07] Speaker 05:
And so he denied discovery on it.

[00:08:09] Speaker 05:
Later on, he said, you know, in retrospect, that was probably ill-advised.

[00:08:15] Speaker 05:
What certainly was.

[00:08:16] Speaker 01:
Let's not come down too harshly on him.

[00:08:21] Speaker 01:
Dr. Beebe imploded visibly on the stand.

[00:08:23] Speaker 01:
I read the entire transcript.

[00:08:25] Speaker 01:
He imploded visibly.

[00:08:26] Speaker 01:
This guy presented credibly, at least based on the record I read.

[00:08:30] Speaker 01:
And who really could have imagined?

[00:08:32] Speaker 01:
I mean, this is like David Baltimore going back decades ago.

[00:08:34] Speaker 01:
Who could have imagined an expert would have gone that far a field from appropriate behavior and fully and completely purging himself.

[00:08:44] Speaker 05:
I mean, that's so outrageous.

[00:08:46] Speaker 01:
It's hard to have imagined or to have expected the district court to think that that were likely or to expect their lawyers to have thought it to that matter.

[00:08:55] Speaker 05:
But even when

[00:08:57] Speaker 05:
He was, Judge Corrigan was presented with uncontradicted and now admitted evidence of actual perjury.

[00:09:03] Speaker 05:
He still wouldn't let us do discovery.

[00:09:05] Speaker 05:
He said complicity is something you have to show.

[00:09:08] Speaker 04:
What was the purpose of the discovery?

[00:09:09] Speaker 05:
The discovery was to show the involvement of counsel in preparing Dr.

[00:09:17] Speaker 01:
Well, if you want to breach the attorney-client privilege or the work product privilege, you've got to show crime fraud, right?

[00:09:23] Speaker 01:
I didn't see you make that showing.

[00:09:25] Speaker 01:
I didn't see anywhere you even alleged it.

[00:09:27] Speaker 01:
You don't just get to pierce the privilege or the work product privilege without falling into one of the exceptions.

[00:09:34] Speaker 05:
First of all, it's not privilege because it's not communication with the client.

[00:09:37] Speaker 05:
It is work product.

[00:09:39] Speaker 05:
Work product is substantial need and inability without undue hardship to obtain.

[00:09:46] Speaker 01:
That's not fraud, but if you require... You don't have to prove crime fraud in the 11th Circuit in order to get work product out of the attorney?

[00:09:53] Speaker 05:
I don't believe so, but if we do... What is it that you think the standard is, just so that we're... It's the work product standard, the rule.

[00:09:58] Speaker 05:
The rule says work product is not subject to discovery unless there is a showing of substantial need and an inability to obtain it without undue hardship.

[00:10:09] Speaker 05:
Now we're not talking about communications with clients.

[00:10:13] Speaker 05:
We have a situation where there are 23 emails between Dr. Bilowski and all the people at the lab that actually knew what they were doing in the two or three days before Dr. Bilowski's deposition.

[00:10:26] Speaker 05:
It's a fair inquiry based on those facts that we've been able to drag out of the case.

[00:10:31] Speaker 01:
But not one of those emails, none of that information.

[00:10:34] Speaker 01:
And it's all quite damning of Bilowski.

[00:10:37] Speaker 01:
There's no doubt about that.

[00:10:38] Speaker 01:
But not one of them implicates anything about the attorneys, not one of them

[00:10:42] Speaker 01:
suggests any complicity at all.

[00:10:45] Speaker 01:
And under those standards, it's hard for me to conclude the district court abused his discretion when not upholding what I think of as one of the sacrosanct and most important types of privilege that exists, which is attorney-client slash work product.

[00:11:00] Speaker 05:
Your Honor, it probably would change your mind if we were able to produce evidence that at one o'clock on a specific day, two days before he gave his deposition, Dr. Bilowski sent an email to Dr. Dolkan saying, how do you do this again?

[00:11:14] Speaker 05:
And at the same time, we find out he's meeting with the Johnson & Johnson lawyer.

[00:11:20] Speaker 01:
No, it probably wouldn't change my mind actually.

[00:11:23] Speaker 05:
Your Honor, if he's meeting with the lawyer and he has to take a break to go ask how to do something.

[00:11:29] Speaker 05:
That would be powerful evidence, I believe, that they should have known.

[00:11:33] Speaker 05:
But we get back to the question of, if in the 11th Circuit you have an expert witness who perjures himself, there is an assumption, according to the way Moore reads the case, and I think a fair reading of the cases, that there is complicity.

[00:11:52] Speaker 05:
But if you have to show evidence.

[00:11:53] Speaker 03:
You still have to show prejudice, right?

[00:11:55] Speaker 05:
And Your Honor, we just talked about prejudice.

[00:11:58] Speaker 04:
That's part of the argument.

[00:12:01] Speaker 04:
Do you contend that the jury on this record could have found that the Sure-D hardness limitation was satisfied?

[00:12:11] Speaker 05:
It could have, Your Honor.

[00:12:12] Speaker 05:
If we go back to trial, there's a question.

[00:12:13] Speaker 04:
No, no, no.

[00:12:14] Speaker 04:
That's not my question.

[00:12:15] Speaker 04:
On this record.

[00:12:19] Speaker 04:
Yes, I do.

[00:12:21] Speaker 04:
How?

[00:12:22] Speaker 05:
Well, Your Honor, there is lots of Sure-D evidence

[00:12:27] Speaker 05:
that went beyond Dr. Bilal's or Dr. Beebe's testimony.

[00:12:30] Speaker 05:
It's recited at pages 23 and 24 of our opening brief and 17 to 19 of the reply brief.

[00:12:36] Speaker 04:
It was admitted into evidence?

[00:12:39] Speaker 04:
It was in the case.

[00:12:41] Speaker 04:
Was it admitted into evidence?

[00:12:43] Speaker 05:
Not all of it, no.

[00:12:44] Speaker 04:
I'm talking about the record that was made here.

[00:12:48] Speaker 04:
How could the jury have reached a conclusion on this record that was before it, that the Sure D requirement was satisfied?

[00:12:56] Speaker 05:
That is not the test.

[00:13:13] Speaker 01:
You just be clear that you don't remember all of the record evidence so that if somebody else thought it was, you didn't just waive it.

[00:13:22] Speaker 05:
I will do that, your honor.

[00:13:23] Speaker 05:
In fact, I'd like to be able to consult with my colleague, Mr. Holdreth.

[00:13:28] Speaker 01:
Because I'll just give you a little hint.

[00:13:29] Speaker 01:
Your brief to us last time around had lots of other evidence and we have a paragraph at the end of our opinion that says we're not going to reach this additional evidence at this time.

[00:13:38] Speaker 01:
And so I would hate for you to sort of stand here and give that all away.

[00:13:41] Speaker 05:
Thank you for the help, your honor.

[00:13:43] Speaker 05:
I don't want to give it away either.

[00:13:45] Speaker 00:
Um, I believe that I'm a little bit confused by your position right now, because you were talking about how there should be some sort of inference of complicity.

[00:13:53] Speaker 00:
Have you abandoned your argument that complicity is not required?

[00:13:57] Speaker 05:
Your honor, I think the argument goes like this in the 11th circuit.

[00:14:01] Speaker 05:
When an expert witness is involved, the court infers complicity.

[00:14:07] Speaker 05:
We don't have to affirmatively prove it.

[00:14:09] Speaker 00:
Okay, my question is, in your brief, you argued that the district court erred by even considering and requiring complicity.

[00:14:16] Speaker 00:
So have you added that argument?

[00:14:18] Speaker 05:
We have not, Your Honor.

[00:14:19] Speaker 05:
What we're trying to say is the court erred by requiring proof of actual complicity.

[00:14:26] Speaker 05:
Okay, that's a legal error.

[00:14:27] Speaker 05:
What he did is he recited the Hare case in the 11th Circuit authority.

[00:14:33] Speaker 05:
Then he cited all sorts of non-11th Circuit authority and concludes with a 7th Circuit

[00:14:38] Speaker 05:
case, Metlin, and the Seventh Circuit is probably the polar opposite of the Eleventh Circuit.

[00:14:45] Speaker 05:
I'll reserve the rest of my time.

[00:14:46] Speaker 04:
Well, you've only got 30 seconds.

[00:14:47] Speaker 04:
We'll give you two minutes, Mr. Mack.

[00:14:49] Speaker 04:
Thank you very much, Your Honor.

[00:14:59] Speaker 04:
Mr. Diskamp?

[00:15:01] Speaker 02:
Thank you, Your Honor.

[00:15:02] Speaker 02:
May it please the Court, I'm Gregory Diskamp, representing the FLE J&J Vision Care

[00:15:09] Speaker 02:
Dr. Blaski's false testimony was an affront to the judicial system.

[00:15:15] Speaker 02:
It wound up ruining his career.

[00:15:17] Speaker 02:
It was highly embarrassing to us.

[00:15:20] Speaker 02:
It caused the district court to give great attention and seriousness to this motion, which he very carefully considered through a lengthy hearing and many submissions.

[00:15:32] Speaker 02:
In the end, he found that the false testimony had to be balanced against

[00:15:39] Speaker 02:
the interest in finality in the jury's verdict and just to result.

[00:15:46] Speaker 02:
He provided over the trial.

[00:15:47] Speaker 02:
He was not surprised by the outcome, which he followed very closely.

[00:15:52] Speaker 02:
And he found that the trial was a fair trial, although not a perfect trial.

[00:15:57] Speaker 01:
How can you defer to the finality of the jury's verdict when your primary expert on the surface layer limitation, the one who did all of the testing,

[00:16:06] Speaker 01:
When we now discover it's all perjury, I mean, you know, it has to be thrown out.

[00:16:11] Speaker 01:
So how can you defer to the jury verdict?

[00:16:14] Speaker 01:
That was, I read the entire trial transcript, that was your primary defense at trial on infringement.

[00:16:20] Speaker 01:
The jury found no infringement.

[00:16:22] Speaker 01:
So how do we, how do we say that verdict wasn't tainted by that evidence?

[00:16:26] Speaker 02:
I'm glad you asked, Your Honor, because Dr. Polowski was, that was our primary defense, but Dr. Polowski was not remotely our primary witness.

[00:16:36] Speaker 01:
If the only witness that performed any testing and your other witnesses relied on that testing and referenced it, they referenced it, they talked about it, they agreed with it.

[00:16:46] Speaker 02:
By and large, that's not correct.

[00:16:47] Speaker 02:
The only witness I recall who mentioned Dr. Belaski's testimony was Dr. Paul.

[00:16:52] Speaker 04:
You can't possibly be arguing that if the jury verdict rested on non-infringement of the coding limitation, that Dr. Belaski's testimony wasn't highly pertinent there.

[00:17:08] Speaker 02:
I can.

[00:17:09] Speaker 02:
I can.

[00:17:09] Speaker 02:
I'll tell you why.

[00:17:10] Speaker 02:
If you'll indulge me, I'll tell you why.

[00:17:13] Speaker 02:
Their case was based on Beebe's testing that completely collapsed after his cross and their case was in tatters.

[00:17:23] Speaker 02:
Our case was you can't test for this using TOF-SIMS and XPS.

[00:17:30] Speaker 02:
Our witnesses were fact witnesses but they were experts.

[00:17:35] Speaker 02:
They were the scientists who developed this product, the scientists who invented it, the head of R&D, the head of manufacturing.

[00:17:42] Speaker 02:
They had a clinical research.

[00:17:43] Speaker 02:
They all offered extensive first-hand information about the development of the product and that it was homogenous and clear through.

[00:17:52] Speaker 02:
That's why it had the optical clarity that made it number one in the market.

[00:17:56] Speaker 02:
They were all extremely knowledgeable about what they were talking about.

[00:18:00] Speaker 02:
Then we put on three experts, one of whom was

[00:18:04] Speaker 02:
Dr. Steffen, who criticized Dr. Beebe, one of whom was Dr. Paul, who criticized Dr. Beebe.

[00:18:12] Speaker 02:
Their criticisms of Dr. Beebe's work was based on its scientific flaws, not because of what Polowski had to say.

[00:18:20] Speaker 02:
That was a side-ish.

[00:18:21] Speaker 02:
The scientific flaws in Beebe's testing would have warranted doubting that evidence had the judge had to reach it.

[00:18:29] Speaker 00:
You can't say that the jury's verdict did rest on Dr. Bielowski's testimony.

[00:18:36] Speaker 00:
You can't say that, right?

[00:18:37] Speaker 02:
I can't say it rested on it.

[00:18:38] Speaker 02:
I don't believe it did rest on it.

[00:18:40] Speaker 00:
You don't know whether or not it did because it's a general verdict.

[00:18:43] Speaker 02:
Of course, that's correct.

[00:18:45] Speaker 02:
But the district judge found that the principal impact of Bielowski's testimony would have been to exclude Bielowski or to cross-examine him.

[00:18:55] Speaker 02:
I think the reality is excluding him would have been the right answer.

[00:18:59] Speaker 02:
You're going to have, I'm happy to move on, but I believe in that.

[00:19:04] Speaker 04:
You had another defense, which you prevailed on later on that the court found that the jury verdict could have been supported by untainted evidence.

[00:19:19] Speaker 04:
And there are Dr. Bibi.

[00:19:25] Speaker 04:
Uh, was there witness on the shore D hardness limitation and he collapsed, right?

[00:19:30] Speaker 04:
That's correct.

[00:19:31] Speaker 02:
And it's counted for about 5% of the trial time.

[00:19:34] Speaker 02:
It was a very small part because we didn't put on any evidence on shore D after his collapse.

[00:19:40] Speaker 02:
And the answer to the impact of Belowski on this ruling, it was none.

[00:19:45] Speaker 02:
Uh, the judge says that a five three nine eight when he's announcing the ruling is an announcement of the court's ruling.

[00:19:53] Speaker 02:
It was a ruling the court was prepared to make after the original argument, but for reasons of judicial economy, the court deferred to let the case go to the jury.

[00:20:02] Speaker 02:
Polowsky criticized Beebe.

[00:20:04] Speaker 02:
Everybody criticized Beebe, but Beebe's collapse was his own and prevail on a 60B free motion.

[00:20:11] Speaker 02:
They have to show by clear and convincing evidence that somehow Polowsky's false testimony interfered with their ability fully and fairly to present the soft limitation.

[00:20:22] Speaker 02:
I think respectfully that all they have is speculation that's well short of clear and convincing evidence.

[00:20:29] Speaker 02:
This was not a summary judgment case.

[00:20:31] Speaker 02:
Phoebe would not have gone back.

[00:20:33] Speaker 01:
Did they have to prove that they would have prevailed or just that they were denied a full and fair?

[00:20:39] Speaker 02:
That's the right test, Your Honor, full and fair.

[00:20:41] Speaker 02:
But the question is, how can they show by clear and convincing evidence that they were denied a full and fair opportunity to try the soft limitation?

[00:20:50] Speaker 01:
No, no, no, that's not what the test is.

[00:20:52] Speaker 01:
The test isn't where you denied a full and fair opportunity on this limitation, on this issue, on this issue.

[00:20:58] Speaker 01:
It's where you denied a full and fair opportunity, a trial.

[00:21:00] Speaker 01:
For example, suppose that you misled them into believing that you stipulated, for the most part, to the soft limitation or something like that, and so all of their evidence went somewhere else.

[00:21:11] Speaker 02:
Let me get to that, because if you look at the 60 B3 cases, I'm sorry,

[00:21:18] Speaker 02:
If you look at the 60B3 cases, they grant new trials only on issues that are tainted.

[00:21:24] Speaker 02:
So if you look, for example, at this court's decision in this case, there's false testimony on one accused product and not on the other.

[00:21:31] Speaker 02:
The new trial is only on the accused product painted.

[00:21:35] Speaker 00:
If you look at the 11th Circuit decision in Bonner... Even not separating claim limitations, that's a whole other issue.

[00:21:41] Speaker 02:
Well, that's right.

[00:21:42] Speaker 02:
So if you go to something like the 7th Circuit decision in Sarkis-Tarzian,

[00:21:47] Speaker 02:
Uh, there was a Jamal judgment as a matter of law, just like there was here.

[00:21:52] Speaker 02:
There was a 60 B three motion based on new evidence.

[00:21:55] Speaker 02:
The court found the new evidence didn't change the underpinnings of the Jamal.

[00:22:00] Speaker 02:
So there was no new trial.

[00:22:01] Speaker 02:
The Jamal stood.

[00:22:03] Speaker 02:
That's where we are.

[00:22:04] Speaker 02:
We have a Jamal.

[00:22:04] Speaker 02:
We have a judgment as a matter of law.

[00:22:06] Speaker 01:
One of the things that the Jamal was predicated on, in fact, the only thing reached on appeal was, uh, the exclusion of Dr. Beebe.

[00:22:15] Speaker 01:
What, if anything, did this district court judge say about now in light of what he knows about Bialski, because the exclusion was discretionary.

[00:22:23] Speaker 01:
He could have adopted lesser sanctions under rule 37.

[00:22:25] Speaker 01:
He could have done different things.

[00:22:27] Speaker 01:
So what is it that this district court judge said, if anything, on this record, anywhere in this record about what he might have done differently regarding the exclusion of Dr. Beebe in light of all of this new information?

[00:22:41] Speaker 02:
First off, the exclusion was

[00:22:44] Speaker 02:
discretionary, this court affirmed the discretionary ruling.

[00:22:48] Speaker 02:
There was a Daubert ruling as well, that the evidence was not reliable.

[00:22:55] Speaker 04:
I think the question is directed to both to both the Daubert ruling and the rule 37 sanction.

[00:23:04] Speaker 04:
Both of those are discretionary.

[00:23:06] Speaker 04:
And the suggestion is that if the judge had known about the perjury at the time,

[00:23:13] Speaker 04:
He might've reached a different discretionary decision with respect to those.

[00:23:19] Speaker 04:
That's the issue.

[00:23:20] Speaker 02:
Okay.

[00:23:21] Speaker 02:
Respectfully, I would disagree that Daubert's discretionary at the district court level.

[00:23:25] Speaker 02:
If you find that it's scientifically baseless, you must exclude the evidence.

[00:23:29] Speaker 02:
The obligation on the district court is the gatekeeper.

[00:23:33] Speaker 01:
Here's what the court said.

[00:23:34] Speaker 01:
Except that, hold on.

[00:23:35] Speaker 01:
It may well be that part of the reason he found, we don't know.

[00:23:39] Speaker 01:
Dr. Beebe's testimony so unreliable was that Dr. Bialski three times called him dishonest and a liar and said that his results couldn't be believed.

[00:23:48] Speaker 01:
Now I will grant you, Beebe imploded, at least with regard to the soft limitation on the stand, but we still have the admitted perjurer impugning the character of the other witness.

[00:23:59] Speaker 01:
And we have a record in which this district court judge said he, after everything that he's heard, he doesn't think Beebe's credible.

[00:24:05] Speaker 01:
And so,

[00:24:07] Speaker 01:
But everything he heard included the one guy calling him a liar, who we now know is the biggest liar of all.

[00:24:12] Speaker 01:
So what do we do?

[00:24:13] Speaker 02:
Well, first off, he excluded Dr. Beebe based on Dr. Beebe's testimony and the cross of Beebe, which occurred on their direct case.

[00:24:20] Speaker 02:
And he said in the excerpt I just read to you, he was fully prepared to make that ruling at the time.

[00:24:25] Speaker 01:
The original question, I'm sorry, is what, if anything, do we have on what he would have done vis-a-vis Beebe?

[00:24:33] Speaker 01:
Is there any reason to think that he would or would not have done

[00:24:37] Speaker 01:
that the same thing with regard to Bibi, had he known about Bialski?

[00:24:40] Speaker 02:
Yes, there is reason to think he would have done the same thing, because in footnote nine of this opinion... Of which opinion?

[00:24:46] Speaker 02:
The opinion on appeal, today's opinion.

[00:24:49] Speaker 02:
Footnote nine, he says, after rejecting their challenge with respect to the surface layer... Can you tell me what page of the appendix that's on?

[00:24:58] Speaker 02:
A-15, I'm sorry.

[00:24:59] Speaker 01:
A-15, okay.

[00:25:00] Speaker 01:
Just give me a sec.

[00:25:04] Speaker 02:
Footnote nine.

[00:25:05] Speaker 02:
In footnote nine,

[00:25:06] Speaker 02:
He says that he's saying they had a full and fair opportunity to try their case on the surface layer and denies them relief, even without considering that JJVC was entitled to judgment as a matter of law.

[00:25:20] Speaker 02:
I don't see a bit of hesitation there.

[00:25:23] Speaker 01:
I don't understand.

[00:25:24] Speaker 01:
What is it, how I should, what are you saying I should interpret about this?

[00:25:28] Speaker 02:
I am saying that in this opinion, the district judge repeats

[00:25:33] Speaker 02:
that we were entitled to judgment as a matter of law.

[00:25:37] Speaker 01:
He says, without considering whether you are entitled to judgment as a matter of law.

[00:25:41] Speaker 01:
He doesn't say you were entitled to it.

[00:25:44] Speaker 01:
He says, this is true even without considering that issue.

[00:25:49] Speaker 02:
Respectfully, I read it somewhat differently than your honor.

[00:25:52] Speaker 01:
This is true even without consider... You have to read it in its context.

[00:25:55] Speaker 02:
He's basically rejecting their arguments even without considering our separate argument that we're entitled.

[00:26:02] Speaker 02:
I think that it's...

[00:26:03] Speaker 02:
There's nothing in this written opinion that suggests that the district court had a moment's doubt about the propriety of excluding PB.

[00:26:09] Speaker 01:
And he did express a moment's doubt, didn't he, at one of the hearings?

[00:26:12] Speaker 02:
He paused the question, which any, I think, serious jurors would do.

[00:26:17] Speaker 01:
Does this matter?

[00:26:18] Speaker 01:
Let me read it to you.

[00:26:19] Speaker 01:
I guess my problem with it is, or my query is, that I don't think, I'm not sure I would have gotten to the place where I'm, I sure, I may not have gotten to that different place.

[00:26:27] Speaker 01:
I may have done something different, and something different may have happened if I had known at the time

[00:26:32] Speaker 01:
Dr. Beebe's shortcomings came out during trial, and they were obvious.

[00:26:37] Speaker 01:
And he goes on and on.

[00:26:38] Speaker 01:
But I mean, he's suggesting that he may have done something very different under Rule 37.

[00:26:43] Speaker 01:
He's certainly stammering and stuttering around about it.

[00:26:46] Speaker 01:
But I don't read anything in his opinion as saying, oh, nope.

[00:26:49] Speaker 01:
You know what?

[00:26:49] Speaker 01:
Now that I've thought it through, I would not have done anything different.

[00:26:52] Speaker 01:
I would have excluded Beebe.

[00:26:53] Speaker 01:
That's part of the problem.

[00:26:54] Speaker 02:
OK.

[00:26:54] Speaker 02:
I would read it differently.

[00:26:56] Speaker 02:
I would read footnote nine as saying what I've been arguing it says.

[00:27:00] Speaker 02:
And footnote 10 on the next page, A16, is saying, if Ms.

[00:27:04] Speaker 02:
Belowski's misconduct had come to light during trial, the court surely would have taken remedial action.

[00:27:10] Speaker 02:
Remedial action involves Dr. Belowski.

[00:27:13] Speaker 01:
I think it is a... For him to say, well, I sure as heck would have taken remedial action.

[00:27:22] Speaker 01:
doesn't mean that that remedial action may not have resulted in allowing Dr. Beebe.

[00:27:27] Speaker 01:
I mean, that's part of my problem is if he had allowed Dr. Beebe in his discretion because he found that it was really unfair to you that you all didn't have the information on precisely how Dr. Beebe did the test beforehand.

[00:27:42] Speaker 01:
But you know what?

[00:27:43] Speaker 01:
It seems a lot less unfair when it's discovered that nobody had the information on how your expert did his testing until never after the trial, basically.

[00:27:52] Speaker 01:
You can see that, you know, when you're kind of comparing, there's a lesser of two evils for sure here.

[00:27:57] Speaker 01:
I'm not saying there's no evil present.

[00:27:59] Speaker 01:
I'm saying there's a lesser of two evils.

[00:28:01] Speaker 01:
And maybe under that theory, he may have allowed Dr. Beebe to go forward and... Let me tell you what my problem is.

[00:28:07] Speaker 04:
I mean, I look at the... And it's the same line of question.

[00:28:10] Speaker 04:
I look at this record and I see the argument that you made.

[00:28:13] Speaker 04:
And you made the argument to the district court that the summary judgment, that the J-Mall was an independent ground here.

[00:28:22] Speaker 04:
unaffected by the perjury with respect to the coding limitation.

[00:28:29] Speaker 04:
And I look at the record and I'm not sure that I see that the district court adopted that argument.

[00:28:37] Speaker 04:
And I think what Judge Moore is talking about is that we have some sort of vague comments

[00:28:47] Speaker 04:
about the summary judgment and exclusion of the evidence in this transcript, but when he gets to the final decision here, he doesn't come right out and say, well, we don't have to worry about this because I still would have granted Jane Wall, I would have excluded the evidence and I would have granted Jane Wall on the short de-hardness limitation.

[00:29:06] Speaker 04:
And the question is, how do we know that he really addressed and resolved that question?

[00:29:13] Speaker 02:
Well, he certainly didn't say it in half purpose.

[00:29:15] Speaker 02:
I agree with you on that.

[00:29:17] Speaker 02:
Now, however, as I read what he did is he recognized that our argument had force.

[00:29:23] Speaker 02:
He said that.

[00:29:24] Speaker 02:
And then he wanted, because he's an extremely conscientious, hardworking district judge, he wanted to get to analyze in detail the effect of this alleged, of this in fact misconduct on the trial.

[00:29:41] Speaker 02:
And so he turned to the surface layer and the bulk of his opinion is addressed to the surface layer where he finds

[00:29:48] Speaker 02:
no complicity of counsel where he finds they had a full and fair opportunity to litigate the surface layer, all and therefore he denies the motion, all even without considering the jail.

[00:30:02] Speaker 04:
I'm not sure that I read the opinion the same way.

[00:30:06] Speaker 04:
He certainly said the full and fair opportunity with respect to Shore D. I don't see him saying explicitly a full and fair opportunity with respect to the surface layer.

[00:30:18] Speaker 04:
Oh, I'm sorry.

[00:30:18] Speaker 04:
I think he said the opposite.

[00:30:19] Speaker 02:
I think maybe he was supposed to say that.

[00:30:22] Speaker 02:
He says... I'm just finding where... Oh, there it is.

[00:30:42] Speaker 02:
I think in the last paragraph on page 10, he says,

[00:30:47] Speaker 02:
Rembrandt is still not entitled to a new trial because it was not prevented from fully and fairly presenting its case.

[00:30:52] Speaker 02:
And then he explains why he thinks that, and he says that's concluding, that he concludes that even without considering that it was entitled to judgment as a matter of law.

[00:31:00] Speaker 02:
And on the soft limitation, I read this entire discussion as a discussion of the surface layer.

[00:31:09] Speaker 02:
He talks about the evidence we presented on the surface layer.

[00:31:12] Speaker 02:
He talks about the, he rejects their arguments

[00:31:15] Speaker 04:
They probably would have to guess if that's true and we disagree with you that there was a full and fair opportunity to litigate the surface layer issue because of the perjury, then we have to send it back to have him address this other question.

[00:31:28] Speaker 02:
I don't think you do.

[00:31:29] Speaker 02:
I mean, I think you have to find that he made an abuse of discretion, that he made a clear error of law, that he, we won on multiple grounds.

[00:31:44] Speaker 02:
We won because there was no complicity because there was no misconduct of the party.

[00:31:49] Speaker 02:
And they made no showing of that.

[00:31:52] Speaker 02:
We won because we had a full and fair opportunity to litigate the case.

[00:31:55] Speaker 02:
And I believe we won and should win because the soft limitation precludes further analysis of question.

[00:32:06] Speaker 02:
They didn't win their case.

[00:32:08] Speaker 02:
They lost their case.

[00:32:09] Speaker 03:
Okay.

[00:32:09] Speaker 03:
Thank you, Mr. DeSantis.

[00:32:11] Speaker 03:
Thank you.

[00:32:12] Speaker 03:
Mr. Magnuson, you've got two minutes.

[00:32:14] Speaker 05:
Thank you, Your Honor.

[00:32:16] Speaker 05:
The surety evidence in the record is recited at pages 67 and 68 of our opening brief and page 25 of our reply brief.

[00:32:26] Speaker 05:
We didn't talk about the discovery misconduct.

[00:32:30] Speaker 05:
Remember, Belowski's a guy who'd never tested contact lenses before.

[00:32:35] Speaker 05:
They sent known infringing contact lenses, say, test these with your method to validate it.

[00:32:41] Speaker 05:
They never produced the data from that, which in fact showed an

[00:32:45] Speaker 05:
profile exactly like their lenses.

[00:32:47] Speaker 05:
That's misconduct.

[00:32:49] Speaker 05:
That doesn't require complicity.

[00:32:51] Speaker 05:
But let me just say this.

[00:32:53] Speaker 05:
Counsel has done a good job here, as he did before, focusing on the trial.

[00:32:59] Speaker 05:
Rosier, Hare, this court's prior decision all recognize that if you have fraud that comes into the case early, at the discovery stage, it shapes the decisions that everyone makes going forward.

[00:33:12] Speaker 05:
And that being the case, that's the deprivation of the full and fair opportunity to try the case.

[00:33:18] Speaker 05:
It is as we discussed.

[00:33:19] Speaker 05:
Maybe we would have moved for summary judgment.

[00:33:21] Speaker 05:
Maybe we would have changed our strategy.

[00:33:23] Speaker 05:
Maybe the focus would have been different.

[00:33:25] Speaker 05:
We clearly met that standard and Judge Corrigan didn't talk about it.

[00:33:29] Speaker 03:
Thank you.