Trudell Medical International Inc. v. D Rburton Healthcare, LLC

United States Court of Appeals
for the Federal Circuit
______________________
TRUDELL MEDICAL INTERNATIONAL INC.,
Plaintiff-Appellant
v.
D R BURTON HEALTHCARE, LLC,
Defendant/Counter-Claimant-Cross-Appellant
______________________
2023-1777, 2023-1779
______________________
Appeals from the United States District Court for the
Eastern District of North Carolina in No. 4:18-cv-00009-
BO, Judge Terrence William Boyle.
______________________
Decided: February 7, 2025
______________________
L AURA A. L YDIGSEN, Crowell & Moring, LLP, Chicago,
IL, argued for plaintiff-appellant. Also represented by WIL-
LIAM HARRY F RANKEL , J UDY HE, D AVID L INDNER.
ALBERT P. ALLAN, Allan Law Firm, PLLC, Charlotte,
NC, argued for defendant/counter-claimant-cross-appel-
lant. Also represented by WILLIAM ROBERT T ERPENING,
Terpening Law PLLC, Charlotte, NC.
______________________
Before M OORE, Chief Judge, CHEN and STOLL , Circuit
Judges.
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MOORE, Chief Judge.
Trudell Medical International Inc. (Trudell) appeals
the United States District Court for the Eastern District of
North Carolina’s decision to allow D R Burton Healthcare,
LLC (D R Burton) to present infringement testimony by
Dr. John Collins at trial. Trudell also appeals the denial of
a motion for judgment as a matter of law (JMOL) on in-
fringement of claims 1–7, 9, and 18 of U.S. Patent
No. 9,808,588 or, in the alternative, a new trial on infringe-
ment of claims 1–18 and 20–26 of the ’588 patent (the As-
serted Claims). See Trudell Med. Int’l v. D R Burton
Healthcare LLC, No. 4:18-cv-00009, 2023 WL 2315391
(E.D.N.C. Mar. 1, 2023) (Post-Trial Order). We reverse the
district court’s admission of Dr. Collins’ testimony and its
denial of a new trial on infringement, and we remand the
case to be reassigned.1
1 D R Burton cross-appealed the jury’s verdict that
the Asserted Claims of the ’588 patent were not shown to
be invalid. We need not reach this issue, however, as D R
Burton withdrew the cross-appeal at oral argument in light
of its failure to file a renewed motion for JMOL pursuant
to Federal Rule of Civil Procedure 50(b). Oral Arg. at
27:20–28:09, available at https://oralarguments.cafc.us
courts.gov/default.aspx?fl=23-1777_10092024.mp3; A
Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356,
369–70 (4th Cir. 2008) (“a party’s failure to file a postver-
dict motion under Rule 50(b) leaves an appellate court
without power to direct the District Court to enter judg-
ment contrary to the one it had permitted to stand” (quot-
ing Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 400–01 (2006)) (internal quotation marks omit-
ted))).
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BACKGROUND
Trudell owns the ’588 patent, which relates to portable
devices for performing oscillatory positive expiratory pres-
sure (OPEP) therapy. ’588 patent at 1:16–18, 50–51.
OPEP therapy loosens secretions from airways to improve
respiration. See id. at 1:22–46. The three independent
claims read:
1. A respiratory treatment device comprising:
an inlet configured to receive exhaled air into the
device;
an outlet configured to permit air to exit the device;
an opening positioned in an exhalation flow path
defined between the inlet and the outlet;
a blocking segment configured to rotate relative to
the opening between a closed position where the
flow of air through the opening is restricted, and an
open position where the flow of air through the
opening is less restricted; and,
a vane configured to rotate the blocking segment
between the closed position and the open position
in response to the flow of air through the opening;
wherein a size of a blocking surface of the blocking
segment is equal to or greater than a size of the
opening.
9. A respiratory treatment device comprising:
an inlet configured to receive exhaled air into the
device;
an outlet configured to permit air to exit the device;
an opening positioned in an exhalation flow path
defined between the inlet and the outlet, the open-
ing having a generally oblong cross-sectional shape
comprising a shorter first dimension and an
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elongated second dimension perpendicular to the
first dimension; and,
a blocking segment configured to translate relative
to the opening along the shorter first dimension be-
tween a closed position where the flow of air
through the opening is restricted, and an open po-
sition where the flow of air through the opening is
less restricted;
wherein a size of a blocking surface of the blocking
segment is equal to or greater than a size of the
opening.
18. A respiratory treatment device comprising:
an inlet configured to receive exhaled air into the
device;
an outlet configured to permit air to exit the device;
an opening positioned in an exhalation flow path
defined between the inlet and the outlet, and,
a blocking segment configured to translate relative
to the opening between a closed position where the
flow of air through the opening is restricted, and an
open position where the flow of air through the
opening is less restricted;
wherein a side profile of the blocking segment is
shaped to mate with a side profile of the opening,
when the blocking segment is in the closed position;
and,
wherein a size of a blocking surface of the blocking
segment is equal to or greater than a size of the
opening.
Id. at 12:12–26, 49–63, 13:25–14:5 (emphases added). D R
Burton sells OPEP devices, including the vPEP®, vPEP®
HC, iPEP®, PocketPEP®, and PocketPEP® Advantage
products (collectively, the Accused Products).
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On January 29, 2018, Trudell sued D R Burton for in-
fringement of certain claims of the ’588 patent. After a
claim construction hearing in October 2020, the case was
reassigned in January 2021 to United States District Court
Judge Terrence Boyle. Judge Boyle assigned a new magis-
trate judge, who issued a Memorandum and Recommenda-
tion (M&R) regarding claim construction. J.A. 23–63. The
district court adopted the M&R in its entirety.
On August 26, 2022, the district court amended the
case schedule. At that time, fact discovery had not closed
and expert discovery had not yet commenced. J.A. 1740 at
24:20–24. The district court set the close of all discovery
for September 30, 2022 and set trial to start on November
7, 2022. Before the September 30 discovery deadline,
Trudell submitted expert reports on infringement and
damages. On October 21, 2022, D R Burton filed a seven-
page declaration from Dr. Collins in support of its opposi-
tion to Trudell’s motion for summary judgment on infringe-
ment. The district court denied Trudell’s summary
judgment motion.
Leading up to trial, Trudell filed motions in limine
seeking to exclude testimony from Dr. Collins on invalidity
and noninfringement and to exclude testimony from any
D R Burton witnesses on claim construction. The district
court did not rule on Trudell’s motion in limine until the
pre-trial conference on Friday, November 4, 2022. At the
pre-trial conference the district court initially denied the
motion in limine, J.A. 2035 at 3:1–2, then on Monday, No-
vember 7, 2022—the first day of trial—the district court
reversed itself and granted the motion in limine after
Trudell filed a motion for reconsideration, J.A. 2073 at 2:3–
12. The district court then doubled back moments later,
“reserv[ing] a ruling on [i]t until the end of plaintiff’s case.”
J.A. 2079 at 8:25–9:2. On the third and final day of trial,
after Trudell presented its case, but before lunch, the dis-
trict court ruled that Dr. Collins would testify after the
lunch break. J.A. 2476–77 at 36:24–37:15.
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After a three-day trial, the jury returned a verdict that
the Asserted Claims were valid but not infringed. Trudell
filed a renewed motion for JMOL of infringement or, in the
alternative, a new trial. The district court denied the mo-
tion. Post-Trial Order at *1–5. Trudell appeals the district
court’s decision to allow Dr. Collins to provide noninfringe-
ment testimony at trial, as well as its denial of JMOL or a
new trial. Trudell requests that, should this case be re-
manded to the district court for further proceedings, the
case be reassigned to a different district court judge. We
have jurisdiction under 28 U.S.C. § 1295(a)(1).
D ISCUSSION
I. Expert Testimony
We review a district court’s decision to admit or exclude
evidence under the law of the regional circuit. Siemens
Med. Sols. USA, Inc. v. Saint-Gobain Ceramics & Plastics,
Inc., 637 F.3d 1269, 1284 (Fed. Cir. 2011). The Fourth Cir-
cuit reviews a district court’s decision to admit expert tes-
timony for abuse of discretion. Sardis v. Overhead Door
Corp., 10 F.4th 268, 280 (4th Cir. 2021). “A district court
abuses its discretion when it misapprehends or misapplies
the applicable law.” Wickersham v. Ford Motor Co., 997
F.3d 526, 538 (4th Cir. 2021) (cleaned up).
Federal Rule of Civil Procedure 26 requires parties to
identify expert testimony for use at trial, and, subject to
exceptions not present here, “this disclosure must be ac-
companied by a written report.” F ED. R. C IV . P. 26(a)(2)(B).
The report must contain:
(i) a complete statement of all opinions the wit-
ness will express and the basis and reasons
for them;
(ii) the facts or data considered by the witness in
forming them;
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(iii) any exhibits that will be used to summarize
or support them;
(iv) the witness’s qualifications, including a list
of all publications authored in the previous
10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid
for the study and testimony in the case.
Id.
Federal Rule of Civil Procedure 37(c)(1) states that “[i]f
a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substan-
tially justified or is harmless.” F ED. R. CIV. P. 37(c)(1). The
Fourth Circuit has held the following factors should be con-
sidered in determining whether a party’s nondisclosure is
substantially justified or harmless for purposes of Rule
37(c)(1): “(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to
cure the surprise; (3) the extent to which allowing the evi-
dence would disrupt the trial; (4) the importance of the ev-
idence; and (5) the nondisclosing party’s explanation for its
failure to disclose the evidence.” S. States Rack & Fixture,
Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003). The first four factors relate primarily to the harm-
lessness exception, and the fifth factor relates primarily to
the substantial justification exception. Id.
Trudell argues the district court should have excluded
Dr. Collins’ testimony on noninfringement because he did
not timely serve an expert report on noninfringement, and
failure to comply with Rule 26 was neither substantially
justified nor harmless. To the extent any of the
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declarations submitted by Dr. Collins are considered an ex-
pert report, Trudell argues Dr. Collins’ testimony should
have nonetheless been excluded under Federal Rule of Ev-
idence 702 as unreliable and misleading.
D R Burton filed three declarations with testimony
from Dr. Collins. In May 2019, D R Burton filed a declara-
tion in support of its motion to amend its invalidity conten-
tions. In November 2019, D R Burton filed an expert report
by Dr. Collins in support of its opening claim construction
brief. On October 21, 2022, D R Burton filed a seven-page
declaration from Dr. Collins in support of its opposition to
summary judgment of infringement.
We hold the district court abused its discretion in al-
lowing noninfringement testimony by Dr. Collins. D R
Burton did not disclose Dr. Collins’ noninfringement opin-
ion in a timely expert report, as required by Rule 26 and
Fourth Circuit law. It is undisputed Dr. Collins did not
submit an expert report on noninfringement during the
discovery period. Dr. Collins’ seven-page declaration, to
the extent it could be considered an expert report, was sub-
mitted almost a month after the close of discovery on Sep-
tember 30, 2022. Under Rule 37, therefore, the proper
result is exclusion of Dr. Collins’ noninfringement testi-
mony absent a showing that the failure to disclose was ei-
ther substantially justified or harmless.
The district court did not, nor could it, explain why al-
lowing Dr. Collins’ untimely noninfringement testimony
was substantially justified or harmless. In its order deny-
ing Trudell’s renewed motion for JMOL, the district court
“reaffirm[ed] its decision to allow Dr. Collins’s testimony.”
Post-Trial Order at *4. The district court, however, pro-
vided no reasoning why D R Burton’s failure to submit a
timely expert report by Dr. Collins on noninfringement was
substantially justified. Nor does D R Burton make a color-
able substantial justification argument on appeal. D R
Burton references the accelerated discovery and trial
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schedule, Appellee’s Response Br. 18, but after the district
court amended the case schedule, D R Burton indicated it
did not intend to submit a noninfringement expert report,
J.A. 2031. The accelerated case schedule therefore does not
provide substantial justification for D R Burton’s failure to
disclose.
While the district court did not expressly state that
Dr. Collins’ untimely testimony was harmless, the district
court reasoned that large portions of Dr. Collins’ testimony
had been disclosed in his seven-page declaration, and the
district court’s decision to reserve ruling on Trudell’s mo-
tion in limine provided notice that Dr. Collins might testify
at trial. Post-Trial Order at *4. But it is undisputed that
Dr. Collins’ testimony constituted nearly all D R Burton’s
evidence of noninfringement, Oral Arg. at 24:02–20, and
Trudell was afforded no opportunity to depose him on the
issue because Dr. Collins’ only declaration on noninfringe-
ment was served weeks after the close of discovery. While
Trudell cross-examined Dr. Collins on noninfringement,
“the ability to simply cross-examine an expert concerning
a new opinion at trial is not the ability to cure.” S. States
Rack & Fixture, 318 F.3d at 598.
D R Burton also argues Trudell was not prejudiced by
Dr. Collins’ late declaration because Trudell also submit-
ted late expert reports. Appellee’s Response Br. 15, 18–19.
Due to the accelerated discovery schedule, D R Burton ar-
gues, expert reports from both parties were untimely under
Rule 26 and exclusion of Dr. Collins’ testimony would have
also resulted in exclusion of testimony from Trudell’s ex-
perts. We do not agree. Trudell submitted an infringement
expert report on September 20, 2022 and a damages expert
report on September 29, 2022. D R Burton contends these
reports were untimely under Rule 26(a)(2)(D)(i) because
they were served less than ninety days before the start of
trial on November 7, 2022. Appellee’s Response Br. 7. Im-
portantly, however, the ninety-day deadline expressly ap-
plies “[a]bsent a stipulation or a court order.” F ED. R. CIV.
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P. 26(a)(2)(D). The district court’s August 26, 2022 sched-
uling order allowed for discovery until September 30, 2022,
by which time Trudell had submitted its expert reports.
J.A. 1744. To the extent D R Burton argues it was harmed
by Trudell’s submission of its damages expert report one
day before the close of discovery, this is belied by the par-
ties’ email communications indicating D R Burton ex-
pressly stated that it did not intend to conduct a deposition
of this expert. J.A. 2031.
Finally, Dr. Collins’ testimony exceeded the scope of his
declaration. Compare, e.g., J.A. 2532–33 at 92:8–13,
92:23–93:3 (Dr. Collins’ trial testimony as to whether the
Accused Products “translate” as required by the claims),
with J.A. 1949–55 (Dr. Collins’ declaration which lacks ref-
erence to the “translate” limitation). Even if Dr. Collins’
seven-page declaration was a timely filed, fully compliant
expert report, it failed to fully disclose the noninfringement
testimony given at trial. To the extent the district court
reasoned Dr. Collins’ untimely declaration sufficed to give
Trudell notice of his noninfringement testimony, signifi-
cant portions of his trial testimony went beyond the bounds
of the declaration.
Under these circumstances, Dr. Collins’ untimely re-
port was neither harmless nor substantially justified. Ac-
cordingly, the district court abused its discretion by failing
to exclude Dr. Collins’ testimony under the Federal Rules
of Civil Procedure and Fourth Circuit law. See F ED. R. CIV.
P. 26(a)(2)(B), 37(c)(1); S. States Rack & Fixture, 318 F.3d
at 597.
The district court also abused its discretion by failing
to exclude Dr. Collins’ testimony because—even if his non-
infringement declaration is viewed as an expert report—
his noninfringement declaration was unreliable under Fed-
eral Rule of Evidence 702. Rule 702 requires:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
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may testify in the form of an opinion or otherwise
if the proponent demonstrates to the court that it
is more likely than not that:
(a) the expert’s scientific, technical, or other spe-
cialized knowledge will help the trier of fact to un-
derstand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable princi-
ples and methods; and
(d) the expert’s opinion reflects a reliable applica-
tion of the principles and methods to the facts of
the case.
Because expert testimony “can be both powerful and quite
misleading,” the district court’s gatekeeping function un-
der Rule 702 is an important one. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 595 (1993) (citation omitted);
see Sardis, 10 F.4th at 283.
Here, Dr. Collins’ noninfringement declaration was un-
tethered from the district court’s claim constructions. For
example, the district court construed the term “a vane” as
“a blade or plate whose primary purpose is to convert ki-
netic energy in the form of fluid movement into rotational
movement” and noted that this construction should be un-
derstood broadly to include “one or more vanes.” J.A. 38.
Dr. Collins, however, opined in his declaration that the ac-
cused products do not infringe because the patent “requires
more than one vane.” J.A. 1953 n.1. Similarly, the district
court construed the term “rotate relative to the opening” as
“move a fixed body relative to the opening about a point at
a fixed radius” and rejected D R Burton’s argument that
the term required “a full revolution.” J.A. 38–42. But Dr.
Collins opined in his declaration that “rotate relative to the
opening” in the context of the ’588 patent meant “the vanes
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rotate in one direction during expiration, round and round
in a circular manner,” J.A. 1953 ¶ 11.2 The methodological
unsoundness of Dr. Collins’ declaration provides an inde-
pendent basis by which the district court abused its discre-
tion in allowing Dr. Collins to testify at trial. Therefore we
vacate the jury’s finding of infringement and remand for a
new trial.
II. J UDGMENT AS A MATTER OF L AW
Trudell argues that a new trial is unnecessary because
the district court erred in denying JMOL of infringement.
We review denial of JMOL under the law of the regional
circuit. ClearValue, Inc. v. Pearl River Polymers, Inc., 668
F.3d 1340, 1343 (Fed. Cir. 2012). The Fourth Circuit re-
views denial of JMOL de novo, applying the same standard
as the district court. Johnson v. MBNA Am. Bank, NA, 357
F.3d 426, 431 (4th Cir. 2004). JMOL is granted if, “viewing
the evidence in a light most favorable to the non-moving
party and drawing every legitimate inference in that
party’s favor, the court determines that the only conclusion
a reasonable jury could have reached is one in favor of the
moving party.” Saunders v. Branch Banking & Trust Co.
of Va., 526 F.3d 142, 147 (4th Cir. 2008). The Fourth Cir-
cuit has acknowledged that JMOL “may not be granted
lightly,” and has indicated that a party seeking JMOL who
also bore the burden of proof faces a particularly formida-
ble burden. Thornhill v. Donnkenny, Inc., 823 F.2d 782,
786 (4th Cir. 1987) (“The only possible basis for judgment
2 Moreover, Dr. Collins also improperly compared
the accused products to the figures in the specification ra-
ther than the claim language. J.A. 2520–23 at 80:8–83:25,
2528–29 at 88:19–89:4; Int’l Visual Corp. v. Crown Metal
Mfg. Co., 991 F.2d 768, 772 (Fed. Cir. 1993) (per curiam)
(“Infringement is determined on the basis of the claims, not
on the basis of a comparison with the patentee’s commer-
cial embodiment of the claimed invention.” (cleaned up)).
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n.o.v. on the breach of contract claim is Donnkenny, Inc.’s
breach of fiduciary duty defense. We are satisfied that the
evidence supporting Donnkenny, Inc.’s affirmative defense
was not so overwhelming that we cannot uphold the jury’s
rejection of that defense.”) (citing 9C C. WRIGHT & A. MIL-
LER , Federal Practice and Procedure § 2535 (1971)).
Trudell argues the district court erred in denying its
renewed motion for JMOL of infringement. Trudell con-
tends the only evidence of noninfringement was Dr. Collins’
testimony. Had this testimony been properly excluded,
Trudell argues, the jury would have lacked a sufficient ev-
identiary basis to find noninfringement. D R Burton ar-
gues that, even without Dr. Collins’ testimony, there
remains sufficient evidence to support the jury’s verdict of
noninfringement. Appellee’s Response Br. 19–20. In addi-
tion to testimony from Dr. Collins, D R Burton presented
testimony from its founder and president, Gregory Lau.
See, e.g., J.A. 2503–04 at 63:19–64:25. Mr. Lau testified
that, after reviewing the patent, he believed Trudell’s in-
vention was a “day and night differen[ce]” from D R Bur-
ton’s devices. J.A. 2503–04 at 63:19–64:4. D R Burton
contends this evidence supports a finding of noninfringe-
ment.
Though we agree with Trudell that, without Dr. Col-
lins’ testimony, D R Burton is left with minimal evidence
of noninfringement, the jury was free to discredit the testi-
mony of Trudell’s expert, Dr. Durgin, and find that Trudell
failed to meet its affirmative burden to prove infringement.
For example, D R Burton’s cross-examination of Dr. Durgin
challenged his infringement testimony particularly regard-
ing the “generally oblong cross-sectional shape” limitation.
J.A. 2365–66 at 142:8–143:1. Credibility determinations
are within the sole province of the jury, and we do not re-
weigh the evidence presented at trial. United States Sec.
& Exch. Comm’n v. Clark, 60 F.4th 807, 812 (4th Cir. 2023).
We hold that Trudell has not established entitlement to
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JMOL of infringement and therefore affirm the district
court’s denial of Trudell’s JMOL motion.
III. N EW T RIAL
We review a district court’s denial of a motion for a new
trial under the law of the regional circuit. Apple Inc. v. Wi-
LAN Inc., 25 F.4th 960, 975 (Fed. Cir. 2022). The Fourth
Circuit reviews such denials for abuse of discretion. United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). A new
trial is warranted if the verdict is against the clear weight
of the evidence; is based upon evidence which is false; or
will result in a miscarriage of justice, even though there
may be substantial evidence which would prevent the di-
rection of a verdict. Minter v. Wells Fargo Bank, N.A., 762
F.3d 339, 346 (4th Cir. 2014).
Trudell argues the district court abused its discretion
in denying the motion for a new trial on infringement be-
cause the verdict is against the clear weight of the evidence
and resulted in a miscarriage of justice. We agree.
The harmful and prejudicial admission of Dr. Collins’
testimony warrants a new trial on infringement. The dis-
trict court abused its discretion in admitting Dr. Collins’
noninfringement testimony because it was untimely, failed
to comply with Federal Rule of Civil Procedure 26, and was
unreliable under Federal Rule of Evidence 702. We vacate
the district court’s denial of the motion and remand for a
new trial.
On remand, the record should be confined to evidence
already produced and admitted, with exclusion of Dr. Col-
lins’ noninfringement testimony. At this juncture, it would
be improper to reopen discovery where D R Burton previ-
ously indicated to Trudell that it did not intend to produce
additional expert reports or depose Trudell’s experts. See
J.A. 2031. Under these circumstances, D R Burton should
not now be permitted to cure its failure to comply with the
disclosure requirements of Rule 26.
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IV. REASSIGNMENT
We evaluate a request to reassign a matter to a differ-
ent judge on remand under the law of the regional circuit.
TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1343 (Fed.
Cir. 2010). Fourth Circuit law provides for reassignment
where “both for the judge’s sake and the appearance of jus-
tice an assignment to a different judge is salutary and in
the public interest, especially as it minimizes even a suspi-
cion of partiality.” G.G. ex rel. Grimm v. Gloucester Cnty.
Sch. Bd., 822 F.3d 709, 726 (4th Cir. 2016) (quoting United
States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991)),
vacated on other grounds by 580 U.S. 1168 (2017). In de-
termining whether reassignment is warranted, the Fourth
Circuit considers: “(1) whether the original judge would
reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously ex-
pressed views or findings determined to be erroneous or
based on evidence that must be rejected, (2) whether reas-
signment is advisable to preserve the appearance of justice,
and (3) whether reassignment would entail waste and du-
plication out of proportion to any gain in preserving the ap-
pearance of fairness.” Id.
Trudell argues that reassignment to a different trial
judge is appropriate and necessary on remand. Trudell
points out that this case is particularly analogous to a
Fourth Circuit case, Beach Mart, Inc. v. L&L Wings, Inc.,
784 F. App’x 118 (4th Cir. 2019), in which the court ordered
reassignment to a different district court judge on remand.
Indeed, the same judge presided over both this trial and
the initial trial in Beach Mart. Trudell argues that, in this
case, the district court judge made objectionable state-
ments similar to those on which the Fourth Circuit based
its reassignment decision. Several such statements in this
case include:
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“And I’m going to settle this case or resolve
it or dismiss it by September 30th. Just –
that’s a heads up.” J.A. 1719 at 3:15–17.
“How about if I try the first case in early
September and forget about your media-
tion.” J.A. 1722–23 at 6:25–7:1.
“[O]ur duty is to get this case done. And if
you can’t get it done, then I will. You can
get it done by settling it. I can get it done
by having a verdict in it.” J.A. 2052 at
20:14–16.
We agree with Trudell that the statements of the trial
judge in this case are so similar to those in Beach Mart,
undermining the appearance of justice and fairness, and
we see no reason to decide this case differently. See 784 F.
App’x at 130. This case is unique in that, as in Beach Mart,
from the moment this case fell in his lap, the trial judge’s
statements indicate that he did not intend to manage a fair
trial with respect to the issues in this case. See, e.g., J.A.
1722 at 6:1–3 (“But I have to report this case by September
30th and I’m going to get it off my report. That’s the prob-
lem you have. Did you know that?”). Likewise, the trial
judge’s statements at trial in the presence of the jury “un-
dermin[ed] the appearance of fairness,” 784 F. App’x at
130. See, e.g., J.A. 2305 at 82:1–8 (“The jury’s just being
tolerant of this, and it’s painful. My gosh. I should have
put time limits . . . . I don’t think they understand they
have to get through this case.”); J.A. 2356 at 133:3–6 (“THE
COURT: You [Trudell’s counsel] can’t do anything quickly.
What do you [the jury] want, do you want to hear this stuff
or do you want it kept moving along in the case? SOME
JURORS: Move along.”). As in Beach Mart, given the
strength of his statements, there is sufficient reason to be-
lieve that the trial judge’s conviction to quickly terminate
the case will be no different on remand. Finally, as in
Beach Mart, reassignment would not result in undue delay
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or wasted judicial resources, as the trial judge presided
over this case for only one of the four years of this litigation.
784 F. App’x at 130. For these reasons, we remand the case
for trial before a different district court judge.3
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
reverse the district court’s decision admitting Dr. Collins’
noninfringement testimony and its denial of Trudell’s mo-
tion for a new trial on infringement. We affirm the district
court’s denial of Trudell’s motion for JMOL of infringe-
ment. We remand for a new trial on infringement con-
sistent with this decision.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED
COSTS
Costs to Trudell.
3 At oral argument, D R Burton indicated a related
case before the same trial judge is stayed pending the out-
come of this appeal. Oral Arg. at 26:09–37. Judicial effi-
ciency usually counsels consolidation of related cases with
a single judge. As the stayed case is not before us, we have
no power to order reassignment of that case.
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