United States District Court, D. Delaware
LEONARD P. STARK UNITE:6 STATES DISTRICT JUDGE.
Wilmington this 20th day of July, 2017:
before the Court are (1) Plaintiff Greatbatch Ltd.'s
("Greatbatch" or "Plaintiff) motion to exclude
opinions of Defendants AVX Corporation and AVX Filters
Corporation's ("AVX" or "Defendants")
expert witnesses Craig D. Hillman, Ph.D. and William B.
Johnson, Ph.D. (D.I. 934); and (2) AVX's motion to
exclude expert testimony of Professor Steven M. Pilgrim,
Ph.D. (D.I. 936). Having reviewed the parties' motions
and associated briefing (D.I. 935, 939, 952, 954, 964, 966),
IT IS HEREBY ORDERED that:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 597 (1993), the Supreme Court explained that
Federal Rule of Evidence 702 creates "a gatekeeping role
for the [trial] judge" in order to "ensur[e] that
an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Rule 702(a)
requires that expert testimony "help the trier of fact
to understand the evidence or to determine a fact in
issue." Expert testimony is admissible only if "the
testimony is based on sufficient facts or data, "
"the testimony is the product of reliable principles and
methods, " and "the expert has reliably applied the
principles and methods to the facts of the case."
Fed.R.Evid. 702(b)-(d). There are three distinct requirements
for proper expert testimony: (1) the expert must be
qualified; (2) the opinion must be reliable; and (3) the
opinion must relate to the facts. See Elcock v. Kmart
Corp., 233 F.3d 734, 741 (3d Cir. 2000).
Greatbatch's motion to exclude opinions of AVX expert
witnesses Drs. Hillman and Johnson (D.I. 934) is GRANTED IN
PART and DENIED IN PART.
Grpatbatch's motion with respect to Dr. Hillman is
DENIED. Greatbatch seeks to exclude portions of Dr.
Hillman's testimony on two grounds: (1) his theory
regarding sample smearing is (a) not generally accepted in
the scientific community and (b) unreliable; and (2) his
testimony regarding conductivity of the reaction zone is not
sufficiently certain to be admissible.
Regarding the first ground, the parties agree that industry
standard procedures were used in cross-sectioning the Ingenio
FFT samples and that such procedures can induce inadvertent
damage to the samples, including the smearing of soft metals
by hard metals. Greatbatch argues, however, that Dr.
Hillman's theory that such smearing moves materials
"over distances from ten microns to distances over
hundreds of microns" (D.I. 935 at 5) is not supported by
the literature, which "does not reveal any smearing of
metals beyond a distance of one micron." (Id.)
In addition, Greatbatch argues that Dr. Hillman's theory
is unreliable because it does not account for certain
observed data, is speculative, and "contradicts basic
chemical principles." (Id. at 6) These
contentions are proper grounds to rebut or cross-examine Dr.
Hillman, but are not sufficient bases to exclude his
testimony. Dr. Hillman's opinion is based on his own
extensive experience and analysis of the AVX FFTs as well as
the generally-accepted "pitfalls" associated with
cross-sectioning devices. (D.L 952 at 2) Greatbatch fails to
identify any evidence that Dr. Hillman's theory is
implausible or unaccepted.
Regarding the second ground, Greatbatch asserts that because
Dr. Hillman opined that he could not "reliably make any
statements regarding any kind of reaction product" and
was unable to opine that the reaction product was not
conductive - stating only that it was possible that
conductivity would be prevented - Dr. Hillman's opinion
regarding the conductivity of the reaction zone was
inconclusive and not sufficiently certain to be admissible.
(D.L 935 at 8) The Court, however, agrees with AVX that Dr.
Hillman's testimony is not inconclusive, and instead
fairly accounts for a lack of information. Greatbatch's
criticisms are valid bases for attacking Dr. Hillman's
analysis, but not to exclude it.
Greatbatch's motion with respect to Dr. Johnson is
GRANTED. Greatbatch moves to exclude Dr. Johnson's
opinion that "no reasonable metallurgist" would
rely on certain data. The Court agrees that this opinion
improperly usurps the Court's gatekeeping function of
determining reasonable reliance. While Dr. Johnson will be
permitted to attack the reliability of Greatbatch's
experts' data, Dr. Johnson's testimony that "no
reasonable metallurgist" would do as Greatbatch's
expert has done is an improper legal conclusion (and one the
Court has not made in this case).
AVX's motion to exclude expert testimony of Professor
Pilgrim, Ph.D. (D.L 936) is GRANTED IN PART and DENIED IN
PART. AVX seeks to exclude three portions of Prof.
Pilgrim's testimony: (1) opinions on the state of mind or
intent of AVX and its employees; (2) opinions that all AVX
Ingenio FFTs (including those without a primer) infringe the
asserted claims of the '779 patent; and (3) opinions
relying on images from EAG labs.
AVX's motion is GRANTED to the extent it seeks to strike
opinions expressed by Prof. Pilgrim as to the state of mind
and intent of AVX and/or its employees. (D.I. 939 at 4) Such
statements are improper legal conclusions based on
unscientific interpretation. Thus, at minimum, the eleven
paragraphs expressly identified by AVX (eight from its
original brief (see D.I. 939 at 4-6) plus three
noted in its reply (see D.I. 966 at 1 n.l)) are
STRICKEN. Prof. Pilgrim will not be permitted to
"present any opinion or testimony that refers
to or implicates AVX's state of mind or otherwise
constitutes legal conclusions." (D.I. 966 at 1) To the
extent the parties have disagreements as to specific
application of this order to other paragraphs or portions of
Prof. Pilgrim's report(s), including his Amended
Supplemental Report, they shall meet and confer and, if
unable to resolve those disagreements, present any remaining
disagreements to the Court at trial.
AVX's motion is GRANTED with respect to Prof.
Pilgrim's opinion that pre-primer parts infringe the
'779 patent. Greatbatch bears the burden to prove
infringement. Greatbatch knew and/or was advised in 2015 that
earlier Ingenio FFTs were made without primer and later
others were made with primer. (See D.I. 966 at 5)
Prof. Pilgrim did not review or analyze non-primer Ingenio
FFTs and simply asserted that both versions infringe the
'779 patent. (D.I. 939 at 7) He offers no analysis to
support this opinion and, to the contrary, acknowledged the
difference the primer could have. (See D.I. 966 at
6) Prof. Pilgrim has no evidence from which to conclude that
the primer parts he analyzed are representative of the
pre-primer parts he also asserts infringe.
AVX's motion is DENIED with respect to Prof.
Pilgrim's reliance on certain images. AVX may
cross-examine Prof. Pilgrim with respect to the adjustment of
these images, but AVX has not identified a persuasive basis