Debate Over Hot-Tubbing In Patent Litigation

Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in Professor Ikechi Mgbeoji’s Patents course, in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

Concerns surrounding expert testimony before the Courts, primarily the independence of experts, the length of trials and the ensuing increase in the cost of litigation, have incited amendments to the Federal Court Rules governing expert witnesses.

Following studies of provincial and international approaches to issues surrounding expert witnesses, the Rules Committee of the Federal Court of Appeal and the Federal Court have amended court rules to incorporate: rules governing pre-hearing expert conferences; processes to streamline the qualification of experts; and a code of conduct to clarify the duties and responsibilities of expert witnesses. Concurrent witness evidence, or hot-tubbing is amongst the list of amendments made to the Federal Court Rules.

Hot-tubbing is a term utilized to describe the practice of having some or all experts testify as a panel. Expert witnesses in complex, technical trials – such as patent litigation regarding pharmaceuticals, testify on the same issue sworn in together, as opposed to individual testimonies in a witness box. In practice, hot-tubbing may involve a free–flowing forum where a decision-maker leads a panel through the discussion of a specific issue. A more traditional approach allows legal counsel to alternate in the cross-examination of opposing panel witnesses, followed by a rebuttal from his or her own witness. The need to curb partisan experts and the rising costs of litigation are often offered as rationalizations for the requirement of this practice. Nevertheless, various intellectual property lawyers have contended that such an approach may in fact exacerbate these issues.

Andy Radhakant of Heenan Blaikie LLP asserts, “situations in which experts are permitted, or in fact required, to confer together or to question each other naturally lead to situations which favour experts who are loud, aggressive, partisan, and maybe even a bully.” Litigants may strategically seek experts with assertive personalities, and a flare for advocacy to drown out less domineering experts. As a result, an expert witness may be unable to express certain points that may have otherwise been made during more regimented, traditional examination and cross-examination. Furthermore, since witnesses are able to be questioned by judges, the separation of the role of the judge as neutral decision-maker may become blurred.

Irrespective of such skepticism, frustration over the current adversarial arrangement of expert witnesses has enabled hot-tubbing to garner support, due to its ability to synthesize often conflicting expert evidence. Justice Binnie echoes this position in the following statement: “the courtroom, with all its formalities and evidentiary rules, is a poor schoolhouse, and ‘duelling experts’ may make bad teachers”. As a solution he asserts, “a court should be able to require opposing experts to testify on the same panel and to be subject to questioning in the presence of each other, with the right to question each other in the presence of the trier of fact”. In Eli Lilly & Co v Apotex, Gauthier J. goes on to state that “the use of hot-tubbing would have been particularly useful” in the patent infringement case. Experts also seem to be fond of hot-tubbing since it permits a fleshing out of issues in a seemingly less adversarial way.

In Canada, we have yet to witness the unfolding of hot-tubbing in patent litigation. However, since expert witnesses play such a pivotal role in these highly technical and complex patent cases, this amendment will vastly alter the ways whereby such litigation pans out.

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