United States District Court, D. Delaware
MAGNETAR TECHNOLOGIES CORP. and G&T CONVEYOR CO. Plaintiffs,
SIX FLAGS THEME PARKS INC., et al., Defendants.
REPORT AND RECOMMENDATION
MARY PAT THYNGE, Magistrate Judge.
In this patent infringement case, plaintiffs Magnetar Technologies Corp. ("Magnetar") and G&T Conveyor Co. ("G&T") (collectively, "plaintiffs") sued the defendant theme park operators on March 1, 2007, alleging infringement of U.S. Patent Nos. 5, 277, 125 ("the 125 patent") and 6, 659, 237 ("the 237 patent"). Plaintiffs assert defendants use infringing magnetic braking systems or assemblies in numerous amusement park rides. Plaintiffs contend defendants infringe claim 3 of the 125 patent and/or claims 1 and 10 of the 237 patent.
Presently before the court is the defendants' motion to exclude the testimony of plaintiffs' infringement expert, Mark T. Hanlon ("Hanlon").
II. PARTIES' POSITIONS
Defendants present two arguments in support of their motion: Hanlon lacks the necessary qualifications to opine on magnetic brake assemblies or the patents-in-suit, and his opinions are not supported by sufficient data, reliable analysis or principles and methods.
A. Hanlon lacks any specialized knowledge to support his expert opinions
Defendants assert "Mr. Hanlon's expert report does not identify any experience with the technology described in the patents-in-suit, either by virtue of his work at Euro Disney twenty years ago or through any other training or experience." Although Hanlon listed several magnet braking projects in his resume,  he has not described the nature of these projects or his role in them.
Defendants maintain Hanlon completely lacks any "understanding of the operation of the accused magnetic braking assembly, " which is exemplified in his deposition. When questioned regarding the effect that the width of the air gap between the permanent magnet arrays has on the braking force, Hanlon admitted he was "not an expert in the design or the theory of how magnetic brakes work, " but he understands "the magnet arrays [can be moved] to change the force imposed... upon the fin." Thus, defendants argue, although Hanlon may understand the patent, his "inability to answer [ ] basic questions [shows] that he is not qualified to provide his opinions on infringement."
Defendants contend Hanlon's lack of expertise is further exemplified during questioning about Figure 2c of the 125 patent,  where he was asked if he saw anything wrong with the figure. He replied: "[t]here doesn't appear to be. But, once again, I'm not an expert in the design of magnetic arrays...."
Defendants conclude Hanlon's education and experience may provide a basic understanding of roller coaster construction and safety, but "this general knowledge does not qualify him provide reliable opinions that the accused rides include magnetic braking assemblies with the elements recited in the asserted claims of the patents-in-suit."
Plaintiffs respond that Hanlon is qualified by reiterating and expanding on his resume, notably, his membership on the American Society of Testing and Materials ("ASTM") committee for Amusement Rides and Devices, his employment as a California State Quality Safety Inspector, and his management and operation of Hanlon Engineering, Inc. and Hanlon Engineering Intellectual Property, Inc. Plaintiffs further note that between 1996 and 2006 while employed at Hanlon Engineering, he worked on "numerous projects on which he specifically facilitated the installation of magnetic brakes." His role in those projects involved: reviewing the ride and collecting technical data; designing the structure of the magnetic brakes; fabricating the magnetic brake assemblies and fins; and installation and testing.
Plaintiffs contend that despite Hanlon's absence of knowledge in the design of magnetic arrays or the theory of magnetic brakes, defendants fail to "explain why such expertise is a necessary qualification to testify on whether the accused rides incorporate the elements of the asserted claims." Plaintiffs conclude Hanlon's experience in roller coasters and magnetic brakes qualifies him as an expert in the "design and structure of amusement park rides, and... with the mounting of magnetic brakes...."
Defendants counter that Hanlon's experiences "are only general in nature, " and his membership in ASTM does not demonstrate he understands magnetic braking technology. Defendants further contend plaintiffs fail to explain how Hanlon's experiences as a state inspector and as owner of Hanlon Engineering, provide him expertise in the technology of the patents-in-suit. Defendants conclude Hanlon's lack of analysis and detail in his report make "it impossible to determine whether his education and experience permit him to reliably provide opinions."
B. Hanlon's conclusions are not supported by an appropriate analysis of defendant's accused roller coaster rides
Defendants request Hanlon's opinion on patent infringement be excluded because "his proposed testimony is completely unsupported and ungrounded in fact." Defendants claim Hanlon's report: fails to "identify how any accused ride meets the limitations of any asserted claim;" merely regurgitates the claim language, followed by a collection of documents; and is void of any discussion of how the cited documents correspond to the claim limitations. Defendants maintain Hanlon's report exhibits no reliable principles and methods, and even if it does, it fails to show how he applied those principles and methods to the facts as required by FED. R. EVID. 702.
Plaintiffs contend Hanlon identifies the data, principles and methods employed for his conclusions through his element-by-element listing of the specific documents on which he relied. They claim that there is no "analytical gap" because Hanlon's conclusions are based on personal knowledge and experience.
Defendants challenge of Hanlon's expert opinion is that it fails to identify "how any accused ride meets every limitation of any asserted claim, " and fails to address the mechanical components of any accused roller coaster.
III. GOVERNING LAW
The admissibility of expert testimony is governed by Federal Rule of Evidence ("FED. R. EVID.") 702, which states in relevant part:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court interpreted FED. R. EVID. 702 to "confide to the judges some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony." The Third Circuit, in applying the Daubert principles, has interpreted and construed Rule 702 as "embodying three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability and fit."
"In Paoli, [the Third Circuit] explained that even if the judge believes there are better grounds for some alternative conclusion, ' and that there are some flaws in the scientist's methods, if there are good grounds' for the expert's conclusions, it should be admitted." The question of whether an expert's testimony is admissible based on his qualifications, reliability, and fit is committed to the court's discretion.
The trial judge has broad latitude in determining whether the Daubert factors are reasonable measures of reliability. In In re Paoli, the Third Circuit found that proffers of expert testimony do not have to "demonstrate... by a preponderance of evidence that the assessments of their experts are correct, they [need] only... demonstrate by a preponderance of evidence that their opinions are reliable." Daubert recognized "vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." The Supreme Court further emphasized the trial court should focus solely on principles and methodology, not on the conclusions generated. A trial judge, however, must also scrutinize whether such methods have been properly applied to the facts of the case.
As previously stated, the determination of whether to exclude expert evidence is within the court's discretion. The Third Circuit has noted, however:
While evidentiary rulings are generally subject to a particularly high level of deference because the trial court has a superior vantage point to assess the evidence, evaluating the reliability of scientific methodologies and data does not generally involve assessing the truthfulness of the expert witness.... [B]ecause the reliability standard of [FED. R. EVID.] 702 and 703 is somewhat amorphous, there is significant risk that district judges will set the threshold too high and will in fact force plaintiffs to prove their case twice. Reducing this risk is particularly important because the Federal Rules of Evidence display a preference for admissibility.
the primary limitation on the judge's admissibility determinations is that the judge should not exclude evidence simply because he or she thinks that there is a flaw in the expert's... process which renders the expert's conclusion incorrect. The judge should only exclude the evidence if the flaw is large enough that the expert lacks the "good grounds" for [their] conclusions.
The Third Circuit has identified several factors for the court to consider in determining whether to exclude expert testimony:
(1) the prejudice or surprise in fact of the party against whom the excluded witness would have testified, (2) the ability of the party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the district court's order.
Additionally, the "importance of the excluded testimony' should be considered." However, "a district court must examine the expert's conclusions in order to determine whether they could reliably follow from the facts known to the expert and the methodology used." "A court may conclude that there is simply too great a gap between the data and the opinion proffered.'" Thus, a court may exclude an expert's testimony or opinion if it is conclusory, lacks analysis, or the chasm between the analysis and opinion cannot be bridged.
A. Hanlon is qualified to testify about installation, inspection, identification, and application of magnetic brakes
Defendants' argument that Hanlon lacks specialized knowledge to support his expert opinion is directed to his qualifications. Thus, the court must determine the boundaries of his expertise as it concerns the patents-in-suit, the accused products, and the applicable technology.
Hanlon admits he is not "an expert in the design or the theory of how magnetic brakes work." Hanlon further agrees he is not "an expert in the design of magnetic arrays." As such, he cannot directly opine on those topics where he has admittedly no expertise.
In Elcock v. Kmart Corp ., the Third Circuit re-articulated the standard for qualifying an expert:
Rule 702 requires the witness to have "specialized knowledge" regarding the area of testimony. The basis of this specialized knowledge "can be practical as well as academic training and credentials." We have interpreted the specialized knowledge requirement liberally, and have stated that this policy of liberal admissibility of expert testimony "extends to the substantive as well as the formal qualifications of experts." However, "at a minimum, a proffered expert witness... must possess skill or knowledge greater than the average layman..."
Applying the Third Circuit's liberal interpretation of an expert, Hanlon possesses the required skill and knowledge regarding roller coasters to be qualified as an expert because of his previous employment as a California State Quality Safety Inspector, a Walt Disney Imagineer for Euro Disney, as the founder and president of Hanlon Engineering, Inc., and from his current position as the founder and president of Hanlon ...