My partner Joe Laferrera has been incredibly active in connection with the Massachusetts Data Security Regulations, which took effect on March 1, 2010 after multiple delays (initial deadline was January 1, 2009; second deadline May 1, 2009; third deadline January 1, 2010).
Among other things, Joe has co-chaired the Boston Bar Association Privacy Committee last year and this, and organized what seems like countless programs on the regulations. He has also spoken to legal and business groups around the country on the topic (example of presentation materials here, and White Paper here). (more…)
U.S. Federal District Court Judge William Young has issued a lengthy decision, awarding $2.7 million in damages to the estates of three people murdered by James J. Bulger, Stephen J.
Flemmi, and their associates. Judge Young describes the story as “harrowing,” which may be an understatement.
The key defendant in this case is the U.S. Government, which will foot the bill if the decision survives appeal.
Here are some quotes, pulled from the opinion, which is linked in all of its gory detail at the bottom of this post. Judge Young:inst
Despite years of legal wrangling and an extensive factual
record, at its core this is a very simple case. Federal Bureau
of Investigation (“FBI”) agents actively protected a group of
murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. . . .
The FBI’s relationship with Flemmi dates back to 1964, when FBI agent H. Paul Rico opened Flemmi as an informant. Bulger was opened as an informant in 1971. Their recruitment as informants was not an accident. The FBI had made the prosecution of organized crime and La Cosa Nostra its top priority. To that end, J. Edgar Hoover himself inaugurated the Top Echelon Criminal Informant Program on June 21, 1961. Top echelon informants were defined as those “that would be able to provide high-level information on a major scale.” Both Flemmi and Bulger were designated as top echelon informants.
[The first victim, Louis Litif, murdered by Bulger, April 1980].
As to the manner of Litif’s murder, the statement to the FBI of the deceased Brian Halloran, establishes that Litif was lured to the Triple O bar where Bulger and an associate ambushed him. The autopsy report as well as expert testimony show that Litif was stabbed dozens of times with an ice-pick-like implement before he was shot in the back of the neck. Certain of the puncture wounds perforated Litif’s liver, a wound thought to cause exquisite agony.
[The second victim, Debra Davis, Flemmi’s girlfriend of 10 years, September 1981]. (more…)
When I wrote about the trial judge’s remittitur order in the Jamie Thomas case last week, I didn’t mention that a legal aspect of remittitur is that the plaintiff may accept it, or reject it and demand a new trial. I now understand that the plaintiff in this case has not accepted the judge’s remittitur, and has informed the court that it elects instead to proceed with a new trial. This would be the third trial in this case, since the first was set aside by the judge following verdict. Obviously, this decision is a matter of principle, not finances, since the cost of the new trial alone will likely exceed the damages offered by the judge. However, this case, like the Tenenbaum case in Boston, is all about principle, and very little about hard, cold cash.
Massachusetts U.S. District Court William Young has been teaching evidence law for as long as I can recall, even as far back as his pre-federal court days, when he was on the Superior Court bench (Judge Young was appointed to the federal bench in 1985, and had been a Massachusetts Superior Court Judge from 1978 to 1985).
So it comes as a surprise to many when Judge Young admits he made an evidence-related error during a recent patent trial, and that as a result he will order a new trial.
The case is NewRiver, Inc. v. Newkirk Products, Inc.In brief, NewRiver’s patent claimed as an invention a computer-assisted method for manipulating securities information in the SEC EDGAR database to extract only certain information, such as mutual fund prospecti. After trial the jury held some claims to have been infringed, and others to be invalid as obvious. The issue that has attracted attention is contained in Judge Young’s decision addressing the usual tsunami of post-trial motions for judgment notwithstanding the verdict.
The problem arose in connection with NewKirk’s challenge to the validity of NewRiver’s patent. On this issue Newkirk’s expert testified as follows:
Q: Dr. Szymanski, please read claim 9.
This is the independent claim. It states: A system for providing access to mutual fund compliance information comprising: An obtainment subsystem for acquiring securities information from one or more database sources and for extracting compliance information from at least two documents each comprising compliance information for a particular mutual fund. And the second restriction reads: An accessing subsystem for providing access to extracted compliance information for at least two mutual funds offered to investors by different fund issuers of a computer communication link.
Q: Do you have an opinion as to the validity of that claim?
A: Yes, I do.
Q: And what is your opinion?
A: My opinion that it would be obvious for the person of ordinary skill in the art, this invention would be obvious to the person of ordinary skill in the art.
However, the expert gave no basis for this opinion – he didn’t reference the “prior art” that would support that opinion, and his testimony was “general and conclusory.”
Now the rub. The Federal Rules of Evidence permit an expert to state his or her conclusion, as the expert did in this example. Rule 704 and 705 state:
Rule 704… testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Rule 705… The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
And, what’s worse, NewRiver didn’t object to this form of testimony. As a “teacher of evidence” (as Judge Young describes himself in the decision), that should be enough. However, in the context of a patent case, it was not. As Judge Young observed, “Federal Circuit case law renders legally inadequate the opinions of qualified experts on the ultimate issues of anticipation, obviousness, and doctrine of equivalents unless the bases therefor are spelled out on the record.”
Even worse (for defendant NewKirk), NewRiver’s failure to object to this “fatally flawed” testimony (or the “palpably wrong” jury charge premised on it) as the basis for an invalidity challenge (except post-verdict) wasn’t enough to constitute a waiver that would forgive this legal error.
Judge Young is a man of strongly held views, but when he makes a mistake no one is harder on him than he is on himself. Here is how is he resolved to correct this error:
In short, I botched the jury charge.
What of it? argues NewRiver. In the final analysis, obviousness is matter of law. . . . It is, therefore, rare for a trial judge to vacate a jury verdict on obviousness, having already implicitly ruled that the record is sufficient to support the ultimate finding.
Here, my mistake was more fundamental. I did consider the record sufficient to support the jury’s finding of obviousness. It never occurred to me that patent law trumped the Federal Rules of Evidence on the issue of obviousness. Now, recognizing my error, it is clear that the jury’s verdict cannot stand.
. . . Here, I failed to appreciate the applicable legal framework and thus sent the jury off on a wild goose chase. To disregard their work now and decree a contrary result is to give substance to a good-natured rebuke I once received from a friend, a distinguished British jurist. “You Americans are hypocrites,” he told me. “You praise the jury and do everything you can to keep it from getting in the way.” Not in this Court.
. . .
Upon this botched and murky record, the Court’s duty is clear. . . there must be a new trial before a properly charged jury on the issue of the obviousness vel non of claims 9-11. Likewise, there must be a new trial on the issue of the infringement of claims 9-11 as well. This is only fair since the jury here was a fully empowered and engaged body.It well knew that, as to claims 9-11, it was awarding the ultimate verdict to NewKirk. To insure the requisite degree of confidence in the overall jury verdict, there must be a new trial both on the issue of the obviousness of claims 9-11 and on the issue of the infringement of those claims by Newkirk.
Of course, the courts rarely care much for expense or inconvenience to the parties, and the fact that the parties here must endure another full trial (no small matter), is beside the point.
Lastly, Judge Young included with this comment:
Usually, of course, the law of evidence operates in the shadows. It plays no role until an objection is made. Without objection, the proffered evidence is received for its full probative value. See Peterson v. Gaughan,404 F.2d 1375, 1380 (1st Cir.1968) (noting that although appellant had right to move to strike testimony presented in district court that was permeated with hearsay, counsel did not make motion; evidence was therefore received, and counsel had “intelligently relinquished that right”). I can think of but three instances where a judge is expected to intervene sua sponte. These are questions of witness competence, Rule 601 (because no incompetent testimony may be received), application of the rape shield rule, Rule 412 (because prompt judicial action is thought necessary to protect the putative victim of sexual assault), and the parol evidence rule in contract actions (because it is a substantive rule of commercial transactions and not part of the shadow law of evidence).
There is now, at least in Judge Young’s court, a third instance where a judge must intervene sua sponte, and that is to ensure that an expert witness testifying on anticipation, obviousness, or the doctrine of equivalents in a patent case state the basis for an opinion on these issues.
Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota.
In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs. The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittitur”).
Some quotes from the Thomas-Rassett January 22, 2010 decision:
After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.
. . . This reduced award is significant and harsh. It is a higher
award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court.
. . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on a cost of $1.29 per song online.
. . . Thomas‐Rasset asserts that, at most, she was a single mother who merely downloaded and shared music when she had already lawfully bought CDs of much of that music and had no commercial motive to infringe.
. . . The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.
. . . The Court will not substitute its judgment for the judgment of the jury. Rather, it will remit the award to the maximum amount sustainable by the record, so that the statutory damages award is no longer shocking or monstrous.
It will be interesting to see if this decision has any impact on Judge Nancy Gertner, the federal judge assigned to the Tenenbaum case in Boston. In that case, the jury awarded $22,500 for each work infringed, and a motion for remittitur is pending.
Here is a link to the full opinion in Thomas-Rasset:
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