The damages debate between Oracle and Google rages on as another expert witness is added to the mix. The newest addition to this case does not represent either side, and instead is a court-appointed, neutral expert.
Citing Rule 706 of the Federal Rules of Civil Procedure
, U.S. District Judge William Alsup selected Dr. James R. Kearl to be an independent damages expert in the case of Oracle America v. Google
. Judge Alsup’s application of the rarely-used Rule 706 likely stemmed from his frustration with the damages calculations presented thus far.
According to Judge Alsup, the starting point for damages should be the $100 million licensing offer Sun Microsystems made to Google in 2006. The parties, however, have presented numbers that range from zero to several billion dollars.
In May 2011, Dr. Ian M. Cockburn wrote in his expert report on behalf of Oracle that Google owed Oracle between $1.4 billion and $6.1 billion. In the same month these overly high damages were summarily rejected by the court, Judge Alsup asked Google and Oracle to submit candidates for the court-appointed expert.
With a track record of presenting extreme numbers in either direction, both sides are justifiably concerned that Kearl’s opinion will be perceived as fact by the jury. In a request that the court-appointed expert only advise Judge Alsup, instead of testifying before the jury, Google stated, “If the jury is aware that the court's expert was appointed by the court and is not a representative of the parties, that expert will have a powerful stamp of court approval and objectivity that will lend a disproportionate weight to that expert's opinions and testimony.”
Even the judge’s order
suggests that Kearl’s testimony should be more readily accepted by the jury. As the court-appointed expert, Kearl is expected to:
a) critique the damages expert reports submitted by each side,
b) provide his assessment of any or all issues raised or presented in the damages expert reports of the parties, and
c) address each additional issue he believed should be evaluated in order to provide the jury with a complete and independent view of damages in this case.
This broad set of instructions allows Kearl to communicate with the parties’ expert witnesses, evaluate their calculations, and present his own conclusions in an expert report due by November 14. In fact, Kearl is being given all the materials needed to best utilize a damages expert
“While Dr. Kearl is not to function as a mediator, the Court is interested in full disclosure and understanding by Dr. Kearl of all issues relating to damages in this action,” clarified paragraph seven of the order.
Is Judge Alsup simply attempting to bring some order to this one case, or does he intend this to set a precedent for court-appointed expert opinions? The United States legal system is occasionally criticized for its frequent use of experts in civil litigation while other countries, such as Australia and Canada, encourage collaboration between experts and a joint presentation of the facts.
: Do you think the implications of having a court-appointed expert are beneficial or detrimental in commercial litigation?