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Personal Audio Cannot Sub In a Live Expert for a Deceased One in Upcoming Trial

May 29, 2023

The seven-plus-year litigation (1:17-cv-01751) leading up to the June trial between Personal Audio, LLC and Alphabet (Google)—over five claims from two audio player device patents—has been typical in many respects. It has seen a transfer (from the Eastern District of Texas to the District of Delaware); a stay (pending the conclusion of certain inter partes review (IPR) proceedings); a multimillion dollar ask (here, $33M in reasonable royalties); and the usual flurry of dispositive, Daubert, and in limine motions. The flurry in this case, though, surfaced an atypical question for Chief Judge Colm F. Connolly to answer: whether Personal Audio should be permitted to substitute a live expert at trial for one that it did not realize had died in January 2022 until just a few weeks ago. Per Judge Connolly, it should not.


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