Pork remark in patent case prompts magistrate to say he will entertain new trial motion

Mark Werbner, a partner in Dallas' Sayles Werbner, remains stunned by a remark a defense lawyer uttered while cross-examining a Jewish witness who resides in Israel. "I couldn't believe it," Werbner says. Guessing what the witness had eaten at Bodacious Barbecue, the defense lawyer in a patent-infringement case in Marshall offered: "I bet not pork." That prompted a federal magistrate to entertain a motion for a new trial, according to trial transcripts. On May 17, a Marshall jury reached a $3.7 million verdict in favor of a patent-infringement plaintiff and against Cisco Systems Inc. But that verdict was short of the $53 million the plaintiff had sought inCommil USA v. Cisco Systems Inc., et al.After he dismissed the jurors, Eastern District U.S. Magistrate Judge Chad Everingham cited concerns about the remark and told both sides that he remained concerned about its consequences. The context, according to trial transcripts, was as follows: During the morning of May 12, Cisco’s local counsel Otis Carroll, a partner in Tyler’s Ireland, Carroll & Kelley, was cross-examining Jonathan David, who owns the patent, maintains a majority interest in Commil and was testifying for the plaintiff, the company he owns. Carroll asked David on cross-examination if a prospective plaintiff witness who also is Jewish had “hit the road for Israel?” Then Carroll asked David if prior to his departure he had dined with the prospective witness. When David told Carroll he had dined at Bodacious with the other man, Carroll offered made the pork remark. By the afternoon of May 12, Carroll expressed contrition. Referring in front of the jury to Werbner and his partner Dick Sayles, he said, “With the Court's permission, Mr. David, I want to apologize to you for my joke about the lunch meat. That was in poor taste, and I apologize to the jury and to my friend, Mark Werbner, and my friend, Dick Sayles, and anybody in the courtroom who was offended. And I pass the witness with your thanks,” Carroll said. Then Everingham told the jurors: “Mr. Carroll admitted to me at the lunch break that the choice of meat the gentleman ate had absolutely no relevance to the fact that y'all are supposed to decide. Sometimes when a lawyer injects irrelevant information into a case it's because he perceives a weakness in the merits of his case. I don't know whether that's why it happened in this case, but you can consider that as you're evaluating the testimony and the evidence in this case.” On May 17, after dismissing the jurors, Everingham said to Carroll in front of the plaintiff lawyers: “I do not believe that you would ever intentionally try to hurt somebody because of that person's exercise of religious practice, but be that as it may, I am having a difficult time struggling with whether or not the question you propounded to [the plaintiff] witness Mr. David affected the jury's ability to discharge the functions for which they were empaneled in this case. I'll entertain a Motion for New Trial.” Reached by telephone, Carroll declines comment about a pending case.
-- Miriam Rozen

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