  United States Court of Appeals
      for the Federal Circuit
                ______________________

   REMBRANDT VISION TECHNOLOGIES, L.P.,
            Plaintiff-Appellant,

                           v.

   JOHNSON & JOHNSON VISION CARE, INC.,
             Defendant-Appellee.
           ______________________

                      2012-1510
                ______________________

   Appeal from the United States District Court for the
Middle District of Florida in No. 11-CV-0819, Judge
Timothy J. Corrigan.
                 ______________________

                Decided: August 7, 2013
                ______________________

    JACOB M. HOLDREITH, Robins, Kaplan, Miller & Ciresi
L.L.P., of Minneapolis, Minnesota, argued for plaintiff-
appellant. With him on the brief were RONALD J. SCHUTZ,
DIANE L. SIMERSON, RYAN M. SCHULTZ, BRENDA L. JOLY,
and SAMUEL L. WALLING.

    GREGORY L. DISKANT, Patterson Belknap Webb & Ty-
ler LLP, of New York, New York, argued for defendant-
appellee. With him on the brief were EUGENE M.
GELERNTER, MICHAEL J. BUCHANAN, and KATHLEEN
CROTTY. Of counsel was CHARLES D. HOFFMANN. Of coun-
sel on the brief were TIMOTHY JOSEPH BARRON, SR. and
2      REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION

ALEXANDER ROZENBLAT, Jenner & Block, LLP, of Chicago,
Illinois.
              ______________________

    Before DYK, CLEVENGER, and MOORE, Circuit Judges.
MOORE, Circuit Judge,
    Rembrandt Vision Technologies, Inc. (Rembrandt) ap-
peals from the district court’s judgment that Johnson &
Johnson Vision Care, Inc. (JJVC) does not infringe Rem-
brandt’s U.S. Patent No. 5,712,327 (’327 patent). Rem-
brandt challenges the court’s grant of judgment as a
matter of law and its denial of Rembrandt’s motion for a
new trial. Because the district court correctly granted
judgment as a matter of law that JJVC does not infringe,
we affirm.
                       BACKGROUND
    The technology at issue in this case relates to contact
lenses. Two important characteristics of a contact lens
are its permeability to oxygen and the wettability of its
surface. ’327 patent, col. 1 ll. 18–21. By the 1980s, those
skilled in the art had developed both “hard” and “soft”
contact lenses that were permeable to oxygen but lacked a
highly wettable surface. Id. col. 1 l. 25–col. 2 l. 7.
    The contact lens claimed in the ’327 patent has both a
highly wettable surface and is permeable to oxygen. The
patent discloses a soft gas permeable lens that contains
an acrylic layer on the surface of the lens body. ’327
patent, col. 3 l. 65–col. 4 l. 45. The addition of the layer
increases the wettability and comfort of the contact lens.
Id. col. 4 ll. 38–45. Claim 1 of the ’327 patent is repre-
sentative and is directed to a “soft gas permeable contact
lens” with certain properties:
    A hydrophilic soft gas permeable contact lens com-
    prised of a polymerization product . . . said lens
    comprising a hydrophilic lens body and a tear-
    wettable surface layer integral therewith, said
REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION        3

    lens body being comprised of said polymerization
    product and said tear-wettable surface layer being
    comprised of polymeric material containing hy-
    droxy acrylic monomer units . . . .
’327 patent, claim 1 (emphasis added). Rembrandt sued
JJVC, alleging that its Advance® and Oasis® contact
lenses infringed the ’327 patent claims. JJVC prevailed
at trial, and the district court, in the alternative, granted
judgment as a matter of law that Rembrandt failed to
prove that the accused lenses were “soft gas permeable”
contact lenses. Rembrandt Vision Techs., L.P. v. Johnson
& Johnson Vision Care, Inc., 282 F.R.D. 655, 668 (M.D.
Fla. 2012) (JMOL Order).
    The central issue in this appeal is whether Rem-
brandt proffered sufficient evidence that the accused
contact lenses were “soft.” The court adopted the parties’
agreed construction of “soft gas permeable contact lens” as
“a contact lens having a Hardness (Shore D) less than
five.” JMOL Order, 282 F.R.D. at 657. Due to that specif-
ic construction, the court excluded Rembrandt’s evidence
that the accused contact lenses were generally known as
“soft” lenses because that evidence was not probative on
whether the accused lenses had a Shore D Hardness of
less than five. Id. at 664; J.A. 41–42.
    At trial, Rembrandt relied on expert testimony from
Dr. Thomas Beebe, Jr. to prove that the accused lenses
had a Shore D Hardness of less than five. But Dr. Beebe’s
trial testimony did not match the opinions disclosed in his
expert report, and the district court ultimately struck his
testimony. Dr. Beebe testified in his expert report that he
performed the Shore D Hardness test by stacking the
accused lenses around a stainless steel ball and then
probing them. JMOL Order, 282 F.R.D. at 657–58. He
testified that he stacked 24 individual hydrated contact
lenses to achieve a thick enough sample to allow full
penetration by a probe that is 2.54 mm in length. Id.
4      REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION

     JJVC moved to exclude that expert testimony on the
basis that Dr. Beebe’s Shore D Harding testing did not
comply with industry-standard testing protocols. Id. at
658. JJVC contended that the applicable standards
required probing a thick button of dry lens material on a
flat surface and do not allow for testing a stack of hydrat-
ed contact lenses around a steel ball. J.A. 1941–42. JJVC
also moved for summary judgment on the grounds that no
reasonable juror could conclude that the accused lenses
were “soft” based on Dr. Beebe’s testing. JMOL Order,
282 F.R.D. at 658. The court denied JJVC’s motion for
summary judgment and deferred ruling on JJVC’s eviden-
tiary motion until after Dr. Beebe testified at trial. Id.
    Dr. Beebe testified on direct examination that he had
performed the steel ball Shore D Hardness test described
in his expert report. JMOL Order, 282 F.R.D. at 658.
During cross examination, JJVC’s counsel asked Dr.
Beebe whether he had tested a sufficiently thick sample of
stacked lenses to comply with the industry-standard
Shore D Hardness testing protocols, which required a
stack with a thickness of 6 mm or more. Id. at 658–59.
Dr. Beebe responded that he had tested a stack of lenses
that was 6 mm thick, not 2.54 mm as he had disclosed in
his expert report. Id. at 658–59. He testified that the
error in his report “might be a typo.” Id. at 659.
     JJVC pressed Dr. Beebe on his testing methodology.
Despite the “typo,” Dr. Beebe confirmed that he had
tested a stack of 24 contact lenses. JMOL Order, 282
F.R.D. at 658–59. JJVC then asked Dr. Beebe how a
stack of 24 contact lenses, each with a thickness of .07
mm, could add up to 6 mm. Id. at 659. Dr. Beebe agreed
that one would expect such a stack to have a thickness
around 1.68 mm. Id.
    JJVC then asked Dr. Beebe to confirm that he did not
test flat samples of the lens material. JMOL Order, 282
F.R.D. at 659. At that point, Dr. Beebe “suddenly
changed course in the middle of cross-examination and
testified that he did not follow the procedures listed in his
REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION        5

expert report.” Id. He testified that he performed the
Shore D Hardness testing by cutting the lenses into
quarters, stacking the lens quarters on a flat surface, and
then probing them. Id. at 659–60. This procedure ex-
plained how he was able to create a stack of lenses that
was 6 mm thick. Id. at 660. None of this procedure was
in his expert report. Id. Dr. Beebe claimed that his
expert report’s disclosure of the wrong Shore D Hardness
test procedure was a “typo.” Id.
    JJVC renewed its motion to exclude Dr. Beebe’s tes-
timony and moved for judgment as a matter of law, and
the court granted the motions. JMOL Order, 282 F.R.D.
at 657. The court struck Dr. Beebe’s testimony under
Federal Rules of Civil Procedure 26 and 37 because his
expert report was “woefully deficient” to support his trial
testimony. Id. at 663–65. The court also excluded Dr.
Beebe’s testimony under Federal Rule of Evidence 702
because nothing in the record established the reliability of
the testing methodology that he testified to at trial. Id. at
665–67. Because Dr. Beebe’s struck testimony was the
only evidence that Rembrandt advanced at trial to prove
that the accused lenses were “soft,” the court granted
judgment as a matter of law that JJVC did not infringe.
Id. at 668.
   Rembrandt appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(1). 1




    1   Rembrandt also challenges the denial of its mo-
tion for a new trial based on the district court’s construc-
tion of the “surface layer” limitation, its exclusion of
evidence related to that limitation, and its denial of
Rembrandt’s attempt to reopen expert discovery regard-
ing the surface layer issue. Because we affirm the district
court’s grant of judgment as a matter of law, we do not
address those other issues.
6     REMBRANDT VISION TECH      v. JOHNSON & JOHNSON VISION

                       DISCUSSION
                            I.
    We apply regional circuit law to review the district
court’s exclusion of evidence and its grant of judgment as
a matter of law. ClearValue, Inc. v. Pearl River Polymers,
Inc., 668 F.3d 1340, 1343 (Fed. Cir. 2012); Micro Chem.,
Inc. v. Lextron, Inc., 317 F.3d 1387, 1390–91 (Fed. Cir.
2003). The Eleventh Circuit reviews de novo the grant of
a motion for judgment as a matter of law. Christopher v.
Florida, 449 F.3d 1360, 1364 (11th Cir. 2006). Judgment
as a matter of law is appropriate when, after a party has
been fully heard on an issue, “a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party.” FED. R. CIV. P. 50(a). A district court’s eviden-
tiary rulings are reviewed for an abuse of discretion.
Goodman-Cable-Gould Co. v. Tiara Condominium Ass’n,
Inc., 595 F.3d 1203, 1210 (11th Cir. 2010).
                            II.
     Rembrandt argues that the court erred in granting
judgment as a matter of law. It contends that the district
court improperly excluded Dr. Beebe’s trial testimony.
Rembrandt asserts that the mistakes in Dr. Beebe’s
report were unintended and did not harm JJVC. It fur-
ther contends that Dr. Beebe’s actual testing methodology
was reliable because he followed industry standard test-
ing protocols. Rembrandt argues that, because the court
erroneously excluded Dr. Beebe’s testimony, we should
reverse the district court’s grant of judgment as a matter
of law.
    Rembrandt also argues that its circumstantial evi-
dence that the accused lenses are generally known as
“soft” precludes entry of judgment as a matter of law. It
contends that the district court erred by categorically
excluding that circumstantial evidence. It further argues
that the circumstantial evidence that was admitted in
evidence shows that the accused lenses meet the “soft”
limitation.
REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION     7

    JJVC counters that the court properly granted judg-
ment as a matter of law. It argues that, regardless of Dr.
Beebe’s intent, there was no justification for Dr. Beebe’s
late disclosure of his testing methods. JJVC argues that
Dr. Beebe’s change in testimony significantly impaired its
ability to prepare a noninfringement defense and prepare
the case for trial. It asserts that Rembrandt failed to
show that Dr. Beebe’s undocumented testing methodology
was sufficiently reliable. Lastly, JJVC argues that the
court did not err in declining to consider Rembrandt’s
circumstantial evidence because the “soft” limitation
requires the lenses to meet a specific hardness measure.
JJVC thus contends that, because Rembrandt did not
present any admissible evidence that the accused lenses
were “soft,” the court properly granted judgment as a
matter of law.
    We agree with JJVC that the court correctly granted
judgment as a matter of law. The district court did not
abuse its discretion when it excluded Dr. Beebe’s testimo-
ny under the Federal Rules of Civil Procedure. Rule 26
requires an expert witness to disclose an expert report
that contains “a complete statement of all opinions the
witness will express and the basis and reasons for them.”
FED. R. CIV. P. 26(a)(2)(B)(i). The purpose of the expert
disclosure rule is to “provide opposing parties reasonable
opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witness-
es.” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.
2008) (quotations omitted).
    Failure to comply with Rule 26(a) has significant con-
sequences, including Rule 37’s “self-executing sanction.”
FED. R. CIV. P. 37(c), advisory committee notes. An expert
witness may not testify to subject matter beyond the
scope of the witness’s expert report unless the failure to
include that information in the report was “substantially
justified or harmless.” FED. R. CIV. P. 37(c)(1). The bur-
den is on the party facing sanctions to prove that its
failure to comply with Rule 26(a) was “substantially
8      REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION

justified or harmless.” Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
    Here, it is undisputed that Dr. Beebe failed to produce
a report containing “a complete statement of all opinions
the witness will express and the basis and reasons for
them.” FED. R. CIV. P. 26(a)(2)(B)(i). The issue is thus
whether, under Rule 37(c)(1), it was “substantially justi-
fied or harmless” that Dr. Beebe waited until trial to
disclose the testing methodology that he claims he actual-
ly employed.
     The district court did not err in concluding that the
late disclosure was not substantially justified. The court
rightly found that “[t]here is simply no excuse for Dr.
Beebe waiting until cross-examination to disclose his
testing procedures.” JMOL Order, 282 F.R.D. at 664. Dr.
Beebe submitted his expert report nearly six months prior
to trial. Id. at 663–64; J.A. 96. Leading up to trial, the
contents of his expert report were the subject of his depo-
sition and were at issue in the pre-trial briefing, including
dispositive motions. JMOL Order, 282 F.R.D. at 663–64.
JJVC moved to exclude Dr. Beebe’s testimony on the basis
that his Shore D testing did not comply with industry
standards. Id. at 658. JJVC also moved for summary
judgment on the ground that the testing was not suffi-
cient to raise a genuine issue of material fact as to the
Shore D Hardness values of the accused lenses. Id.
Nevertheless, even though the adequacy of his Shore D
Hardness testing methodology was in dispute prior to
trial, Dr. Beebe never attempted to supplement his expert
report. As the district court observed, “Dr. Beebe thus
apparently either did not review his expert report or
forgot how he had actually performed the test.” Id. at
664. Nothing in the record indicates that Dr. Beebe’s
failure to disclose his testing methodology was substan-
tially justified.
    We also reject Rembrandt’s argument that Dr. Beebe’s
tardy disclosure was harmless. JJVC prepared its nonin-
fringement defense based on the methodology disclosed in
REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION      9

Dr. Beebe’s expert report, and opted to challenge that
methodology rather than introduce competing expert
testimony. JMOL Order, 282 F.R.D. at 664. Nothing
during the course of the proceedings alerted JJVC to the
possibility that Dr. Beebe would change his testimony. To
the contrary, Rembrandt stood behind Dr. Beebe’s expert
report at summary judgment and Dr. Beebe testified to
the veracity of his report on direct examination. Id. at
657–58. Dr. Beebe even initially defended his testing
methodology upon cross-examination. Id. at 658–59. Dr.
Beebe only recanted his expert report when, after being
“repeatedly challenged on cross-examination,” he was
“[u]nable to explain how his written procedures complied
with the standards” that govern hardness testing. Id. at
659, 668. While Dr. Beebe characterized the errors in his
report as “typo[s],” it is undisputed that the shift in his
testimony was both substantive and substantial. Such a
late change in course significantly hampered JJVC’s
ability to adequately cross-examine Dr. Beebe and denied
it the opportunity to develop or introduce competing
evidence. The court did not err in finding that Dr. Beebe’s
failure to disclose his testing methodology harmed JJVC.
    We conclude that the district court did not abuse its
discretion in excluding Dr. Beebe’s trial testimony under
Rule 37. We therefore decline to address whether the
court erred in excluding Dr. Beebe’s testimony under
Federal Rule of Evidence 702.
    We also agree with JJVC that Rembrandt’s circum-
stantial evidence does not preclude the grant of judgment
as a matter of law. Prior to trial, the only circumstantial
evidence that Rembrandt sought to admit was “JJVC’s
characterization of its lenses as ‘soft.’” Rembrandt Vi-
sions Technologies, L.P.’s Resp. in Opp’n to Johnson &
Johnson Vision Care, Inc.’s Mot. in Limine, at 7, Rem-
brandt Vision Techs., L.P. v. Johnson & Johnson Vision
Care, Inc., No. 3:11-cv-00819 (M.D. Fla. Feb. 7, 2012),
ECF No. 201. The court was within its discretion to
exclude that evidence. Rembrandt agreed to a construc-
10     REMBRANDT VISION TECH   v. JOHNSON & JOHNSON VISION

tion of “soft gas permeable contact lens” that required the
lens to have a Shore D Hardness less than five. Generic
statements that the accused lenses are “soft” had the
potential to confuse the jury and did not bear on whether
the accused lenses had a Shore D Hardness of less than
five. See FED. R. EVID. 403.
     On appeal, Rembrandt argues that other circumstan-
tial evidence shows that the accused lenses had a Shore D
Hardness less than five. However, Rembrandt never
argued that point to the district court. In opposing
JJVC’s motion for judgment as a matter of law, Rem-
brandt only pointed to Dr. Beebe’s trial testimony. See
Rembrandt Visions Technologies, L.P.’s Mem. Of Law in
Opp’n to Johnson & Johnson Vision Care, Inc.’s Renewed
Daubert Mot., Rembrandt Vision Techs., L.P. v. Johnson
& Johnson Vision Care, Inc., No. 3:11-cv-00819 (M.D. Fla.
May 3, 2012), ECF No. 266. Moreover, Rembrandt con-
ceded at the post-trial hearing that Dr. Beebe’s testimony
was the only evidence presented at trial that showed that
the accused lenses met the “soft” limitation. JMOL
Order, 282 F.R.D. at 668 n.15; J.A. 8799–90. This other
circumstantial evidence was also not raised in opposition
to JJVC’s motion in limine. We decline to upend the
district court’s decision on a basis that was not raised
below. Because Rembrandt failed to offer any admissible
evidence that the accused lenses met the “soft gas perme-
able contact lens” limitation, we affirm the district court’s
judgment that JJVC does not infringe the asserted claims
of the ’327 patent.
                       CONCLUSION
    We have considered the parties’ remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the judgment of the district court is
                       AFFIRMED
