United States District Court, D. Delaware
E. Moore, Esq., Bindu A. Palapura, Esq., Stephanie E.
O'Byrne, Esq., POTTER, ANDERSON & CORROON,
Wilmington, Delaware; Chad E. Nydegger, Esq., Brent P.
Lorimer, Esq., Brittany Frandsen, Esq., WORKMAN NYDEGGER,
Salt Lake City, Utah. Attorneys for Plaintiff.
G. Connolly, III, Esq., Ryan P. Newell, Esq., Mary I.
Akhimien, Esq., CONNOLLY GALLAGHER LLP, Wilmington, Delaware;
Thomas S. Reynolds, Esq., Jeremy Adelson, Esq., HANSEN
REYNOLDS DICKINSON & CRUEGER LLC, Milwaukee, Wisconsin;
Alan W. Nicgorski, Esq., Joseph J. Jacobi, Esq., HANSEN
REYNOLDS DICKINSON & CRUEGER LLC, Chicago, Illinois; John
W. McCauley, Esq., HANSEN REYNOLDS DICKINSON & CRUEGER
LLC, Madison, Wisconsin. Attorneys for Defendant.
ANDREWS, U.SV DISTRICT JUDGE
before the Court are Defendant's Motion to Exclude the
Lost Profits Opinion of Scott W. Cragun Pursuant to Federal
Rule of Evidence 702 (D.I. 147) and related briefing (D.I.
148, 178, 201), and Plaintiffs Motion to Exclude the Opinions
of Richard Bero with Respect to Damages Based on a Reasonable
Royalty (D.I. 152) and related briefing (D.I. 153, 184, 199).
reasons that follow, the Court will GRANT in
part and DENY in part Defendant's Motion
to Exclude the Lost Profits Opinion of Scott W. Cragun
Pursuant to Federal Rule of Evidence 702 (D.I. 147), and
DENY Plaintiffs Motion to Exclude the
Opinions of Richard Bero with Respect to Damages Based on a
Reasonable Royalty (D.I. 152).
Rule of Evidence 702 sets out the requirements for expert
witness testimony and states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The Third Circuit has explained:
Rule 702 embodies a trilogy of restrictions on expert
testimony: qualification, reliability and fit. Qualification
refers to the requirement that the witness possess
specialized expertise. We have interpreted this requirement
liberally, holding that "a broad range of knowledge,
skills, and training qualify an expert." Secondly, the
testimony must be reliable; it "must be based on the
'methods and procedures of science' rather than on
'subjective belief or unsupported speculation'; the
expert must have 'good grounds' for his o[r] her
belief. In sum, Daubert holds that an inquiry into
the reliability of scientific evidence under Rule 702
requires a determination as to its scientific validity."
Finally, Rule 702 requires that the expert testimony must fit
the issues in the case. In other words, the expert's
testimony must be relevant for the purposes of the case and
must assist the trier of fact. The Supreme Court explained in
Daubert that "Rule 702's
'helpfulness' standard requires a valid scientific
connection to the pertinent inquiry as a precondition to
By means of a so-called "Daubert hearing,
" the district court acts as a gatekeeper, preventing
opinion testimony that does not meet the requirements of
qualification, reliability and fit from reaching the jury.
See Daubert ("Faced with a proffer of expert
scientific testimony, then, the trial judge must determine at
the outset, pursuant to Rule 104(a) [of the Federal Rules of
Evidence] whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue.").
Schneider ex re!. Estate of Schneider v. Fried, 320
F.3d 396, 404-05 (3d Cir. 2003) (footnote and internal
Defendant's Motion to Exclude the Lost Profits Opinion of
Scott W. Cragun Pursuant ...