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BIO-RAD Laboratories, Inc. v. 10X Genomics Inc.

United States District Court, D. Delaware

November 2, 2018

10X GENOMICS, INC., Defendant.


         Presently 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).

         Defendant's 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 apportionment.

         I have considered the parties' briefing. (D.I. 395, 407, 411). I heard oral argument on November 1, 2018.

         I. BACKGROUND

         On 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).


         Federal 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 admissibility."
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).[1] 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).

         III. ANALYSIS

         A. ...

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