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Integra LifeSciences Corp. v. Hyperbranch Medical Technology, Inc

United States District Court, D. Delaware

April 4, 2018

INTEGRA LIFESCIENCES CORP., INTEGRA LIFESCIENCES SALES LLC, CONFLUENT SURGICAL, INC., and INCEPT LLC, Plaintiffs,
v.
HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.

          MEMORANDUM ORDER

          CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE

         In this action filed by Plaintiffs Integra LifeSciences Corp., Integra LifeSciences Sales LLC, Confluent Surgical, Inc. and Incept LLC (collectively, "Plaintiffs" or "Integra") against Defendant HyperBranch Medical Technology, Inc. ("Defendant" or "HyperBranch"), presently before the Court are: (1) Defendant's Daubert Motion to exclude testimony offered by Plaintiffs' proffered expert, Dr. Dennis J. Rivet, II, (D.I. 394) ("Defendant's Motion"); (2) Plaintiffs' Daubert Motion to exclude testimony offered by Defendant's proffered expert, Dr. Jonathan Flombaum, (D.I. 396); and (3) Plaintiffs' Daubert Motion to exclude testimony offered by Defendant's proffered expert, Dr. Anthony Lowman, (id.) ("Plaintiffs' Motion Regarding Dr. Flombaum and Dr. Lowman" and together with Defendant's Motion, "the Motions"). For the following reasons, the Court DENIES Defendant's Motion and GRANTS-IN-PART Plaintiffs' Motion Regarding Dr. Flombaum and Dr. Lowman, as set out below.[1]

         I. PROCEDURAL BACKGROUND

         Plaintiffs filed the instant case on September 15, 2015. (D.I. 1) Plaintiffs allege infringement of United States Patent Nos. 7, 009, 034, 7, 332, 566, 7, 592, 418, 8, 003, 705 and 8, 535, 705 ("the asserted patents").[2] On September 25, 2015, Chief Judge Leonard P. Stark referred this case to the Court to hear and resolve all pretrial matters, up to and including the resolution of case-dispositive motions. (D.I. 15)

         Briefmg on the instant Motions were completed on December 21, 2017. (D.I. 460, 463) A 7-day trial is set to begin on May 29, 2018. (D.I. 660)

         II. STANDARD OF REVIEW

         Federal Rule of Evidence 702 governs the admissibility of qualified expert testimony, providing that an expert witness may testify 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. Rule 702's requirements have been examined in detail by the Supreme Court of the United States in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and have been said to embody "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000); see also B. Braun Melsungen AG v. Terumo Med. Corp., 749 F.Supp.2d 210, 222 (D. Del. 2010).

         In terms of expert qualifications, an inquiry under Rule 702 must address whether the expert witness has '"specialized knowledge' regarding the area of testimony." Elcock, 233 F.3d at 741 (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)). The basis of this specialized knowledge may be "practical experience as well as academic training and credentials." Id. (internal quotation marks and citations omitted). At a minimum, however, "a proffered expert witness ... must possess skill or knowledge greater than the average layman." Id. (internal quotation marks and citations omitted). The United States Court of Appeals for the Third Circuit has tended to apply this standard liberally. Id.; see also Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

         With regard to the second requirement of reliability, Rule 702 mandates that the relevant expert testimony "must be supported by appropriate validation-i.e., 'good grounds, ' based on what is known." Daubert, 509 U.S. at 590; see also Schneider, 320 F.3d at 404. The information provided by experts should be "ground[ed] in the methods and procedures of science" and be "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590; see also Schneider, 320 F.3d at 404.[3] In examining this requirement, a court's focus must be on "principles and methodology" rather than on the conclusions generated by the expert. Daubert, 509 U.S. at 595; see also Daddio v. Nemours Found, 399 Fed.Appx. 711, 713 (3d Cir. 2010).

         The third requirement of expert testimony, the "fit" requirement, "goes primarily to relevance" as the testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue" and have "a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 591-92 (internal quotation marks omitted); see also Schneider, 320 F.3d at 404. The standard for fit, however, is not a high one; it is met "when there is a clear 'fit' connecting the issue in the case with the expert's opinion that will aid the jury in determining an issue in the case." Meadows v. Anchor Longwall & Rebuild, Inc., 306 Fed.Appx. 781, 790 (3d Cir. 2009) (citations omitted).

         Overall, "Rule 702 embodies a 'liberal policy of admissibility.'" B. Braun Melsungen AG, 749 F.Supp.2d at 222 (quoting Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008)). Nonetheless, the burden is placed on the party offering expert testimony to show, by a preponderance of proof, that it meets each of the standards for admissibility. Id. (citing Daubert, 509 U.S. at 592 n.l0).[4]

          III. DISCUSSION

          A. Defendant's Motion

          Defendant moves to exclude those portions of Dr. Rivet's testimony in which he opines on whether the use of Defendant's products (the "Accused Products")[5] by other neurosurgeons would be covered by the asserted patents, and what other neurosurgeons would understand from Defendant's training materials. (D.I. 402 at 52-53; D.I. 463 at 28)[6] Defendant's assault on Dr. Rivet's testimony is presented via two different lines of attack.

         First, Defendant asserts that Dr. Rivet's testimony is not based on a scientific methodology and should be excluded as unreliable, chiefly because Dr. Rivet has never personally used the Accused Products. (D.I. 402 at 52-53; see also D.I. 463 at 30) Instead, Dr. Rivet: (1) reviewed the Instructions for Use ("IFUs") for the Accused Products, as well as two videos depicting assembly and use of the Adherus AutoSpray Dural Sealant in a cranial operation, and (2) relied upon conversations with colleagues who used the accused Adherus AutoSpray Extended Tip (ET) Dural Sealant. (D.I. 417, ex. 165 at ¶¶ 31-35) Defendant asserts, with little supporting explanation, that such evidence is either "unreliable or irrelevant[.]" (D.I. 402 at 53)

         It is not clear to the Court, however, why it is that this evidence is "unreliable or irrelevant." The above-referenced evidence relates (fairly directly) to how the Accused Products work and how they are used. To be sure, that evidence does not include Dr. Rivet's own firsthand experience with using the products at issue. But while having such experience might be beneficial for an expert testifying about whether a product infringes a patent claim, it is not a prerequisite to offering such testimony. (D.I. 443 at 38-39 (citing cases)); see also Tormenia v. First Inv'rs Realty Co.,251 F.3d 128, 13 5 (3d Cir. 2000) ("Rule 702 does not require that experts have personal experience with the object of the litigation in which they testify, nor does it require that experts eschew reliance on a plaintiffs account of factual events that the experts themselves did not observe."). Defendant may explore any concerns regarding what Dr. Rivet did and did not observe, or what he did or did not consider, via cross-examination. See, e.g., Iplearn, LLC v. Blackboard Inc., C.A. No. 11-876 (RGA), 2014 WL 4954462, at *2 (D. Del. Sept. 29, 2014) (noting that an expert "need not use the [allegedly infringing product] if, as here, he has familiarized ...


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