Published on:

Defendant Precluded from Using Expert’s Deposition After Terminating Relationship with Expert

Greatbatch moved in limine to preclude the defendant, AVX, from presenting the testimony of AVX’s expert, Dr. Panlener, by deposition. The district court concluded that permitting the expert to testify would deprive Greatbatch of the opportunity to challenge Dr. Panlener’s “credibility and would be unfairly prejudicial, under the totality of circumstances, including Dr. Panlener’s role as an employee and then consultant to AVX, his numerous instances testifying (including as a corporate representative), and representations made as to the termination of his relationship with AVX (which appears to have been related to conduct that may be probative of issues that are the subject of the forthcoming trial).”

The district court also noted that AVX may have “procured” the absence of Dr. Panlener by terminating its relationship with him after relying on his deposition testimony and depriving Greatbatch of an opportunity to cross-examine him regarding that termination and then attempting to rely on Dr. Panlener’s necessarily incomplete testimony at trial. The district court concluded that regardless of whether AVX may fairly be viewed as having “procured” Dr. Panlener’s absence, “the Court agrees with Greatbatch that it would be unfair to permit AVX to secure Dr. Panlener’s self-serving testimony about, for instance, the purported pin washer changes, and thereafter fire him so that AVX can play his deposition to the jury and avoid the specter of his live testimony.”

The district court also disagreed with the defendant’s argument that it was entitled to present Dr. Panlener’s deposition testimony at trial under Rule 32(a)(4)(B) (“A party may use for any purpose the deposition of a witness . . .”). The district court found that the Rule 32 did not ¬†override the district court’s “discretion to manage the trial in a manner that is fair to both sides and consistent with all other applicable rules.” See generally Garcia-Martinez v. City & Cty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004) (“Other cases hold that the mere fact that a party is more than 100 miles from the courthouse does not require the district court to automatically admit a party’s deposition.”) (emphasis added).

Accordingly, the district court concluded that the appropriate exercise of discretion “under the circumstances is to grant Greatbatch’s motion.”

Greatbatch LTD v. AVX Corporation, Case No. 13-723-LPS (D. Del. July 20, 2017)


The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

Posted in:
Published on:

Comments are closed.