United States District Court, D. Delaware
BIO-RAD LABORATORIES, INC. and THE UNIVERSITY OF CHICAGO, Plaintiffs,
10X GENOMICS, INC., Defendant.
before the Court is Defendant's motion to exclude the
Supplemental Expert Report and Opinion of Plaintiffs'
damages expert, James E. Malackowski, and preclude Plaintiffs
from presenting lost profits at trial. (D.I. 394).
motion relates to my prior Daubert order, which
excluded Mr. Malackowski's lost profits opinion regarding
a two-supplier market, and his reasonable royalty opinion to
the extent that he failed to account for apportionment. (D.I.
361). I subsequently granted Plaintiffs' request to
supplement Mr. Malackowski's report. (D.I. 366; D.I. 389
at 18:21-20:17). Plaintiffs have since submitted that they do
not intend to present a claim for lost profits at trial.
(D.I. 417). Therefore, the only issue before the Court is
whether Mr. Malackowski's supplemental report fills the
gap in his initial reasonable royalty opinion with respect to
considered the parties' briefing. (D.I. 395, 407, 411). I
heard oral argument on November 1, 2018.
February 12, 2015, RainDance Technologies, Inc.
("RainDance") and the University of Chicago filed
suit against 10X alleging infringement of U.S. Patent Nos. 8,
273, 573 ("the '573 patent"), 7, 129, 091
("the '091 patent"), 8, 304, 193 ("the
'193 patent"), 8, 329, 407 ("the '407
patent"), 8, 822, 148 ("the '148 patent"),
and 8, 889, 083 ("the '083 patent")
(collectively, "the Ismagilov patents"). (D.I. 1).
On October 18, 2016, RainDance and the University of Chicago
filed a third amended complaint in which they asserted the
original Ismagilov patents except for the '573 patent,
and an additional patent on behalf of RainDance only. (D.I.
85). The RainDance patent was later dismissed. (D.I. 138). On
May 30, 2017, Bio-Rad substituted for RainDance. (D.I. 180).
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 rel. Estate of Schneider v. Fried, 320
F.3d 396, 404-05 (3d Cir. 2003) (footnote and internal
citations omitted). At base, "the question of whether the
expert is credible or the opinion is correct is generally a
question for the fact finder, not the court." Summit
6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1296
(Fed. Cir. 2015). Indeed, "[v]igorous 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." Daubert
v. Merrell Dow Pharms. Inc., 509 U.S. 579, 596 (1993).