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Admissibility of expert evidence is best left to the trial judge

McCain commenced a patent infringement action against Simplot, asserting that Simplot had infringed McCain’s 841 Patent directed to a process used for treating potatoes in the production of french-fries. Simplot denied infringement and advanced a counterclaim seeking a declaration of invalidity.

Simplot served two expert reports. Dr. Sastry’s report provided an opinion on claim construction and invalidity issues. Dr. Vorobiev’s report reviewed the 841 Patent, characterized the skilled person, described the common general knowledge of the skilled person, and commented on what the skilled person would understand the 841 Patent to be teaching. Dr. Vorobiev opined that the skilled person would not read the 841 Patent as being directed to pulsed electric field technology.

McCain brought a motion under Rules 52.5 and 279(a) of the Federal Courts Rules to strike Dr. Vorobiev’s report, arguing that the report consisted only of an abstract discussion of scientific history in various fields and did not connect Dr. Vorobiev’s opinions to any infringement issues. Simplot resisted McCain’s motion on the basis that it was premature.

Rule 52.5 covers objections to proposed expert witnesses. The rule requires that a party raise any objection to an opposing party’s proposed expert witness as early as possible, and to serve and file a document containing the particulars and basis for the objection. The rule also provides that an objection can be raised in accordance with subrules 262(2) or 263(c) if the objection is known before the pre-trial conference.

Associate Judge Horne held that Rule 52.5 does not require or encourage an objecting party to bring an early motion to determine the validity of any objections to expert evidence. The rule creates a notice requirement so that no party is caught unaware, and the objection can be addressed, though not necessarily decided, at the pre-trial conference. Horne A.J. noted that, as a general convention, the trial judge makes determinations on the admissibility of expert evidence. While the Case and Trial Management Guidelines for Complex Proceedings and Proceedings under the PM(NOC) Regulations do not prohibit case management judges from making pre-trial orders in respect of expert evidence, the Guidelines contemplate that objections will be heard and determined by the trial judge. Horne A.J. acknowledged that if early motions to determine admissibility of expert evidence were regularly adjudicated by associate judges, it would allow for corresponding Rule 51 appeals and associated delays.

Horne A.J. held that while preliminary motions to exclude expert evidence may be determined by case management judges, case management judges should nonetheless exercise great restraint in granting such orders.

Horne A.J. refused to strike Dr. Vorobiev’s report. While his report was unusual in that it spoke to the skilled person and common general knowledge in isolation without considering any claims and did not state which ground(s) of invalidity the report related to, Horne A.J. was unable to ignore the possibility that the trial judge could determine that Dr. Vorobiev’s evidence is relevant and necessary when construing the claims, and/or in considering overbreadth or insufficiency. It was for the trial judge to determine the ultimate admissibility of Dr. Vorobiev’s report and its evidentiary weight.

A copy of the decision is available here.