United States District Court, D. Delaware
T. O'Kelly, George Pazuniak, and Daniel P. Murray,
O'KELL Y ERNST & JOYCE, LLC, Wilmington, DE Attorneys
E. Farnan, RICHARDS LAYTON & FINGER, Wilmington, DE
D. Elliott, Rachel Weiner Cohen, and Brittany Amadi, WILMER
CUTLER PICKERING HALE AND DORR LLP, Washington, DC Attorneys
for Intervenor Adobe Systems Incorporated.
U.S. District Judge.
6, 2011, Adobe Systems Incorporated ("Adobe") and
Princeton Digital Image Corporation ("PDIC")
entered into a licensing agreement concerning U.S. Patent No.
4, 813, 056, whereby PDIC agreed not to sue Adobe or its
licensees, customers, and end users on any of PDIC's
patents. (See C.A. No. 13-239-LPS D.I. 196 Ex.
In 2013, PDIC brought numerous suits against internet
retailers ("Defendants") for infringement of the
'056 patent, based on the encoding of JPEG images on
their websites. (E.g., D.I. 1) A number of the
defendants claimed to be Adobe's licensed customers and
sought indemnity and defense from Adobe. As a result, Adobe
moved to intervene in 2014. (D.I. 11) In May 2015, the Court
granted Adobe's motion, and Adobe filed a complaint in
intervention, alleging, among other things, that PDIC
breached its contract with Adobe by suing Adobe's
customers. (D.I. 47) Subsequently, PDIC dismissed with
prejudice the underlying patent infringement claims, leaving
only the claims between Adobe and PDIC. (E.g., D.I. 56)
before the Court are PDIC's motion to exclude certain
expert testimony and motion for summary judgment. A jury
trial is scheduled to begin August 21, 2017.
reasons stated below, the Court will deny PDIC's motion
to exclude expert opinions and grant in part and deny in part
PDIC's motion for summary judgment.
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."
are three distinct requirements for proper expert testimony:
(1) the expert must be qualified; (2) the opinion must be
reliable; and (3) the expert's opinion must relate to the
facts. See Elcock v. Kmart Corp., 233 F.3d 734, 741
(3d Cir. 2000).
Rule 56(a) of the Federal Rules of Civil Procedure,
"[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). An assertion that a fact cannot
be - or, alternatively, is - genuinely disputed must be
supported either by "citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, " or by "showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(A) & (B). If the moving party has carried its
burden, the nonmovant must then "come forward with
specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal
quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
defeat a motion for summary judgment, the nonmoving party
must "do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586; see also Podobnik
v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present
more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue")
(internal quotation marks omitted). The "mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations
omitted); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (stating entry of summary judgment is
mandated "against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial"). Thus, the "mere
existence of a scintilla of evidence" in support of the
nonmoving party's position is insufficient to defeat a
motion for summary judgment; there must be "evidence on
which the jury could reasonably find" for the nonmoving
party. Anderson, 477 U.S. at 252.
PDIC's Motion to Exclude Certain Testimony of Adobe's
moves to exclude certain opinions of Dr. Andrew B. Lippman,
Adobe's expert on liability, and Dr. Stephen L. Becker,
Adobe's damages expert. PDIC contends that both
experts' opinions improperly rely on letters and
declarations that are inadmissible hearsay. PDIC raises
additional challenges specific to each expert, contending
that Dr. Lippman should not be allowed to testify about a
Wayback Machine investigation, Defendants' activities, or
Scene7, and that Dr. Becker should not be permitted to
testify about Defendants' activities or restitution. The
Court disagrees with each of PDIC's positions and will
deny PDIC's motion.
Reliance on ...