“The judge is not a rustic who has chosen to play a game of Three Card Trick. He is not fair game. Nor is the truth.”

quote from here

In a significant order on February 23, 2024, the Delhi High Court, in  F- Hoffmann -La Roche Ag & Anr V. Zydus Lifesciences Limited, presided over by Justice Sanjeev Narula, (among other things) issued crucial directives to both parties regarding the appointment of independent scientific experts. This high-profile case revolves around allegations of patent infringement concerning two patents (“Suit Patents”), both relating to ‘Pertuzumab,’ a monoclonal antibody (Mab) biologic used in inhibiting tumor growth. While there are discussions to be had regarding the infringement claims, this post will use this case to dive deeper into the concepts of an interesting aspect of expert evidence, i.e. hot-tubbing or concurrent evidence. The Pertuzumab case is perhaps one significant instance wherein this is poised to deal in such a significant manner in India’s intellectual property adjudication forum.

The Court has directed that each party must disclose their experts’ identities and qualifications in biologicals and related intellectual property issues.  Given their industry stature, both parties are expected to provide comprehensive assistance, including relevant case laws from across jurisdictions. Additionally, the Court may appoint an independent Scientific Advisor to aid in understanding technical complexities through a neutral expert analysis. The Court has put forward a possibility of employing the process of ‘hot tubbing’ to allow direct comparison of the experts’ insights.

A Brief History of Hot-tubbing – WIPO’s Intrigue, Australia’s Claim, and India’s Adoption

Australian judges have proudly claimed to be pioneers in developing concurrent evidence, also known as “hot tubbing,” which experimented in this jurisdiction as early as the late 1970s. Both American and English Courts have affirmed this claim. Indian evidence law accommodates the idea of experts in Section 45 of the Indian Evidence Act, 1872, concerning ‘technical’ fields in which a Judge might not have an expertise, but the experts can ascertain a view only by reason of their specialist expertise. These fields include foreign law, science, art, handwriting or finger impressions, etc., and opinions expressed in regard to these fields are expressed as “relevant facts” for the Court to form an opinion. In adjudicative proceedings, parties commonly avail themselves of expert testimony through two principal mechanisms: firstly, by the nomination of experts by the parties themselves, or secondly, by recourse to independent experts appointed by the adjudicatory body to provide guidance to the Bench. Additionally, the involvement of amicus curiae is another recourse in pertinent disputes. The general aim of the expert evidence, either court appointed or bench appointed, is to ‘educate the court’ and ‘assist the judge’ which in the realm of IP could be questions such as  ‘invalidity of an inventive step’, ‘insufficiency of an inventive step’ or infringement etc. (For eg, see here – paywalled Wilson, Sharp, Gilchrist, Fitzgerald, Hot-tubbing experts: Is there a scope for the use of concurrent expert evidence?, JIPLP, Vol 8, Issue 9, September 2013, Pages 691–699, https://doi.org/10.1093/jiplp/jpt119)

A distinctive form of such expert engagement by the Courts is “hot-tubbing,” where experts testify together before the court as a group rather than individually. There may be a joint pre-trial expert meeting where experts representing each side meet to identify areas of disagreement with the aim of producing a joint report. Later, if appropriate, the experts present their concurrent testimony during the trial in what is colloquially known as a “hot tub.” (There is a similarity in the practice carried in Australia, USA and England as could be seen from the data available). This arrangement, moderated by the Bench usually,  permits lawyers and judges to pose questions in the presence of all experts, facilitating open dialogue and enabling both party-appointed and bench-appointed experts to openly challenge each other’s perspectives. 

In a study conducted by the Civil Justice Council (whose primary role is to advise the Lord Chancellor, the Judiciary and the Civil Procedure Rule Committee on civil matters in England), it has been discovered that  Armstrong v Richardson could perhaps be the first case in the 1970’s wherein the efficiency of ‘hot-tubbing’  was been noted by the Bench and appreciated. This 2016 study maintained that ‘hot-tubbing’ was a ‘rare occurrence’. Other types of concurrent evidence that have been explored in the study are sequential ‘back to back’ evidence, hybrid versions of hot-tubbing and confidentiality clubs. (readers can refer here and here for posts on confidentiality clubs by Abhilasha and Nikhil.) 

In the 2023 WIPO Intellectual Property Judges Forum, held from November 15–16, 2023 members of different judiciaries came together and acknowledged that experts are crucial in litigation and can have an impact on the determination of the outcome of any legal adjudication. One notable highlight of the session was the discourse on “hot-tubbing, Other discussions delved into various techniques aimed at streamlining evidence collection like the utilization of expert evidence, cross-border discovery procedures, digital evidence authentication, and the remote recording of evidence via video-conferencing.  

Delhi High Court Intellectual Property Rights Division Rules, 2022 anticipated the concurrence of the expert’s role. Therein Rule 16 talks of Hot-tubbing or other modes of recording evidence and refers to Rule 6, Chapter XI, Delhi High Court (Original Side) Rules, 2018, or other such modes, i.e., individuals and institutions relating to the subject matter of the dispute as may be necessary. It states that the opinion of the expert shall be persuasive in nature and will aid the Bench in arriving at a decision. The rules mention that the IPD may maintain a panel of experts to assist the Court and which panel may be reviewed from time to time. The remuneration of the expert(s) shall be decided by the IPD. One of the crucial points included is that prior to appointment, a declaration ought to be provided by the expert that he or she has no conflict of interest with the subject matter of the dispute and will assist the Court fairly and impartially. But the concept of ‘hot-tubbing’ in India is nascent. Upon a preliminary search at Manupatra, I was able to find that only in Sandoz Private Ltd. Vs. Otsuka Pharmaceutical Co. Ltd. and Ors (2023, Petition Withdrawn) Justice Pratibha M. Singh had considered whether the cross- examination or hot-tubbing of the experts was required in that case or not.

Hot-Tubbing Rules: Insights into Existing Implementation

Hot-tubbing of Experts, (or Concurrent Expert Evidence) uncommon in Indian legal practice, has gained traction globally (see its usage in the field of medical science here), aiming for cost-efficient dispute resolution. It involves both parties’ experts presenting their testimony together in a discussion moderated by the judge. The judge asks each expert the same questions in rotation, rather than each expert undergoing sequential examination and cross-examination, the rules vary in different jurisdictions. It fosters consensus among experts, reducing adjudication costs. Judicial guidelines and court rules reflect this trend, along with a judicious scope of ‘flexibility’ in such occasions. Advantages include joint reports, though diverging opinions pose risks during cross-examination. The discussion regarding its nuanced approach is essential as its effectiveness varies.

For example in Australian law, Rule 23.15 of the Federal Court Rules 2011 (Cth) outlines procedures for expert evidence, including requirements for experts to confer before or after writing their reports, produce a document identifying agreement or disagreement in opinions, limit evidence to the contents of their reports, present all relevant factual evidence before giving testimony, swear affidavits confirming adherence to or divergence from previously expressed opinions along with supporting factual evidence, give evidence sequentially, and undergo cross-examination and re-examination in a structured manner.

Are Indian Courts Too Hot for ‘Hot-tubbing’?

In a previous post on the blog, Eva Biswas argued that hot-tubbing, in the Indian Context, cannot be the only mechanism for dealing with technical matters and should only be adopted for select matters in a time efficient manner and that above all, regular training for judges on the technical subject matters is crucial. 

Central to this discussion is the evaluation of an expert’s credibility and subsequent admissibility as expert opinion evidence. Many questions arise such as; Do they possess the necessary qualifications to assess complex ideas and offer informed opinions? (see here for a recent foreign criminal case law where such admissibility of an expert opinion evidence has been discussed. Courts here also discussed that the inability of the expert to clearly provide explanations shall not lower the probative value of an expert evidence). Furthermore, considerations arise regarding experts appointed by the bench to serve as scientific advisors. If their findings are unfavorable to one party, could it be perceived as a miscarriage of justice? The opposing side may indeed argue so. 

Despite the persuasive potential inherent in expert evidence, it is common for judges, typically generalists who are versed in legal matters but lacking an in depth understanding of scientific or technical intricacies pertinent to the case, to gain a firsthand insight into these nuances. This aids them substantially in adjudicating the matter appropriately. However, hot-tubbing offers manifold advantages to the bench by not only shedding light on the subject matter under scrutiny but also by comprehensively addressing any subsequent issues and queries that may arise during the deliberations.

Hot-tubbing could be costly, and time-consuming and however exciting the relatively new concept of hot-tubbing may sound, in Indian context, the risk of partisanship is omnipresent in every evaluation of expert evidence and cannot be ruled out. Crafting reports to suit the needs of the clients has been Lord Woolf’s concern in his Access to Justice Report as he has described evidence of experts as biased, referring to them as vices of the ‘hired guns’. However, the constraints of such hired gun reports which sometimes are filed by the legal representatives on behalf of the experts based on what the experts have told them, hot-tubbing could expose any loss of objectivity on the part of the expert and partisan evidence could be brought to light.

Implementation Hot-Tubbing in India: Will Borrowed Feathers Make Poor Birds?

Despite its limitations, the anticipated advantages of hot-tubbing may include providing sufficient judicial support in intricate technical domains and improving the judge’s comprehension, while also allowing the presence of counsels for the parties to prevent the discussion from veering into irrelevant matters. Following the report by Justice Jackson, a pilot study was launched in the Manchester Technology and Construction Court and Mercantile Court under the leadership of His Honour Judge Waksman QC, monitored by the University College London Judicial Institute led by Professor Dame Hazel Genn. 

An Interim Report in 2012 was followed later by another study on ‘Hot-Tubbing’ in English Litigation by the Civil Justice Council in 2016. What could be perceived from this 2016 study is that while judges perceived time savings during trials, the preparation time required for judges might offset these savings. The allocation of costs may shift, potentially reducing parties’ expenses but increasing public costs due to extended judge preparation time. Nonetheless, many judges viewed hot-tubbing positively regarding trial time.. A significant positive outcome of the study was that 83% of judicial respondents believed that hot-tubbing improved the quality of expert evidence, while 84% of legal practitioner respondents shared this view. Additionally, all respondents agreed that hot-tubbing assisted the court in determining disputed issues of expert evidence. However, only a small proportion of respondents perceived hot-tubbing as a cost-saving measure.

The directives issued by the Delhi High Court underscore its commitment to ensuring a thorough and impartial adjudication of the complex issues involved in this patent infringement case, setting a precedent for future legal proceedings in the field of biologics and intellectual property rights. As India navigates the post-abolition era of the Intellectual Property Appellate Board (IPAB), a pioneering case emerges, setting the stage for a new frontier in IP adjudication procedures. With a specific focus on expert evidence evaluation, this case holds significant implications for the evolution of India’s IP adjudication framework. The trajectory of the Delhi High Court’s approach to this case will be closely watched, particularly regarding its consideration of historical precedents from jurisdictions such as Australia and England. The success of this development hinges on achieving parity among the IP adjudication rules across different high courts, as failure to do so risks repeating past shortcomings. This heralds a critical juncture in India’s judicial IP adjudication, with the potential to shape future practices and standards. A general view has been that while hot-tubbing has the potential to be an efficient method of ironing out factual disputes in a technical matter, it can become as lengthy as a trial and judges may not have the bandwidth to conduct the same for every matter (see here). The Delhi High Court case that we started the discussion with, intriguingly raises numerous questions regarding the involvement of experts in IP adjudication. Issues such as the criteria for selecting experts, their engagement, and the assessment of their findings are crucial in all litigation contexts. However, given the evolving nature of expert testimony in IP adjudication in India, it will be fascinating to observe how these matters unfold. The next hearing is scheduled to be listed for 4th April, 2024.

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• Source: https://spicyip.com/2024/03/hot-tubbing-in-indian-ip-litigation-delhi-high-court-issues-directives-in-high-stakes-patent-infringement-case.html