The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Memorandum Opinion Denying Motion for Declaration of Mistrial (Doc. No. 808)
This patent infringement case was trifurcated, and the final portion of the trial ("invalidity trial") concluded on April 18, 2012.*fn1 Two business days prior to the commencement of the invalidity trial, Defendant, Varian Medical Systems, Inc. ("Varian"), filed a Motion for a Declaration of Mistrial (Doc. No. 808). Plaintiff, University of Pittsburgh of the Commonwealth System of Higher Education ("Pitt"), filed its Response the following day (Doc. No. 822), and Varian filed its Reply the Saturday before the invalidity trial was set to begin (Doc. No. 836-1).*fn2
On April 16, 2012, prior to the beginning of the invalidity trial, the Court entered an Order denying Defendant's Motion for a Mistrial (Doc. No. 808). Doc. No. 840. This Memorandum Opinion details the Court's reasoning for its decision to deny Varian's Motion for Declaration of Mistrial.
During the first portion of the trial ("willfulness trial"), Pitt's Expert, Dr. R. Alfredo Siochi, testified, in response to a question on cross-examination by Varian's able trial counsel, about an experiment related to a prior art reference that was conducted at the University of Maryland, after the close of discovery and filing of expert reports. See generally Doc. No. 570. After the conclusion of the willfulness trial, Varian sought to depose Dr. Siochi about this experiment. Doc. No. 809-4. The parties eventually negotiated an agreement whereupon Varian would depose Dr. Siochi, and, in exchange, Varian would not seek further discovery. See Doc. No. 798-2. On April 5, 2012, eleven days prior to the start of the invalidity trial (the third portion of the trial), Dr. Siochi was deposed via videoconference. Doc. No. 809-9. At that deposition, Dr. Siochi stated that he was present for the experiment that occurred at the University of Maryland, but did not physically conduct the experiment. Id. at 18. Dr. Siochi stated that he was able to see the screen upon which the video image was being projected. Id. at 50.
In accordance with an Order of Court, the parties filed a Joint Status Report the Tuesday prior to the start of the invalidity trial, April 10, 2012. Doc. No. 794. Pitt filed a Response to Varian's statement contained within the Joint Status Report. Doc. No. 798. In addition to the Motion for Declaration of Mistrial, Pitt subsequently filed a Motion In Limine (Doc. No. 810), Varian filed a Motion to Compel (Doc. No. 833), and both parties' filed Proposed Orders on the implications of Dr. Siochi's deposition (Doc. Nos. 799 and 805). The Court disposed of those issues prior to the beginning of trial (by denying the Motion for Declaration of Mistrial, granting the Motion in Limine, and denying the Motion to Compel). Doc. Nos. 819, 820, and 841.
Although not explicitly stated in the Federal Rules of Civil Procedure, the Court has the inherent power to declare a mistrial prior to the conclusion of the presentation of evidence. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980). The Court has the power to grant a mistrial when false testimony by a witness materially prejudices the opposing party. See, e.g., Radecki v. GlaxoSmithKline, 646 F. Supp. 2d 310 (D. Conn. 2009). The Court can also grant a mistrial because "the late production [of an expert report] prejudice[s] the Defendant's case as to the preparation of its expert witnesses, the cross-examination of the Plaintiff['s] witnesses, as well as the fact that the expert report may have a significant impact upon the entire posture and strategy of Defendant's case." Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 430 (W.D. Pa. 2004) (internal quotation marks omitted) (citations omitted); Fed.R.Civ.P 37.
A. Varian Has Waived Its Right to A Mistrial on This Issue
Varian waited until two business days before the start of the invalidity trial to file the instant Motion, even though the testimony upon which the Motion is based was given forty-eight days prior, on January 24, 2012. Varian's basis for demanding Dr. Siochi's deposition on April 5, 2012, was that his answer to a question - - asked by Varian's own trial counsel - - included reasons for his expert opinions that allegedly were not disclosed in his expert reports.
Under Federal Rule of Evidence 103(a)(1)(A), Varian was required to object to, and move to strike, Dr. Siochi's testimony in a timely fashion. "The appropriate time to raise an objection is as soon as the party knows or reasonably should know of the grounds for objection." Gov't of Virgin Islands v. Archibald, 987 F.2d 180, 184 (3d Cir. 1993). Varian belatedly argues that Dr. Siochi's answer exceeded the scope of his expert report, which was filed in mid-2011. There is no reason that Varian could not have objected at the time that Dr. Siochi gave that testimony, on January 24, 2012. Additionally, this Court's Practices and Procedures (at ¶E, p.1) require immediate objection to objectionable conduct so that the Court may "in real time" take corrective action, ...