United States District Court, D. Delaware
SIEMENS MOBILITY INC. Plaintiff,
WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION d/b/a WABTEC CORPORATION and WABTEC RAILWAY ELECTRONICS, INC., Defendants.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Wilmington this 2nd day of January,
before the Court are Siemens' Daubert Motion to
Exclude Portions of Mr. Christopher Martinez (D.I. 305),
Motion for Reconsideration (D.I. 396), and Motion for Leave
to Serve a Revised Expert Report of Its Damages Expert (D.I.
398). For the following reasons, IT IS HEREBY
ORDERED that Siemens' motions are
to Local Rule 7.1.5, a motion for reconsideration should be
granted only "sparingly." The decision to grant
such a motion lies squarely within the discretion of the
district court. See Dentsply Int'l, Inc. v. Kerr Mfg.
Co., 42 F.Supp.2d 385, 419 (D. Del. 1999); Brambles
USA, Inc. v. Blocker, 735 F.Supp. 1239, 1241 (D. Del.
1990). These types of motions are granted only if the Court
has patently misunderstood a party, made a decision outside
the adversarial issues presented by the parties, or made an
error not of reasoning but of apprehension. See Schering
Corp. v. Amgen, Inc., 25 F.Supp.2d 293, 295 (D. Del.
1998); Brambles, 735 F.Supp. at 1241. A motion for
reconsideration may be granted only if the movant can show at
least one of the following: (i) there has been an intervening
change in controlling law; (ii) the availability of new
evidence not available when the court made its decision; or
(iii) there is a need to correct a clear error of law or fact
to prevent manifest injustice. See Max's Seafood Cafe
by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999). However, in no instance should reconsideration be
granted if it would not result in amendment of an order.
See Schering Corp., 25 F.Supp.2d at 295.
Court is denying Siemens' motion for reconsideration for
the reasons stated at the November 26 hearing (see
D.I. 395 at 5-6) and in Defendants Westinghouse Air Brake
Technologies Corporation (d/b/a Wabtec Corporation) and
Wabtec Railway Electronics, Inc.'s
("Defendants," "Westinghouse," or
"Wabtec") opposition brief. (See D.I. 412)
the arguments Siemens makes for the relief it seeks
mischaracterize the bases the Court gave for the decision
Siemens is asking the Court to reconsider. The Court did not
"convert a Daubert challenge into a merits
determination" (D.I. 396 at 1) or "hold Mr.
Carter to an incorrect 'heavy burden' standard"
(id). Instead, the Court expressly stated: "The
Court finds that his application of Panduit is not
one that survives a Daubert challenge. . . . What I
have to answer and have answered is that Carter's
analysis does not provide a sound basis on which a jury could
and would award lost profits . . . ." (D.I. 395 at 6)
The Court's reference to a "heavy burden"
reflects the reality that in some cases, possibly including
here, lost profits damages are not available. See also
generally Weschler v. Macke Int'l Trade, Inc., 486
F.3d 1286, 1293 (Fed. Cir. 2007) ("[I]f the patentee is
not selling a product, by definition there can be no lost
profits, [unless] the patentee has the ability to manufacture
and market a product, but for some legitimate reason does
not.. . . [I]n these situations, though, the burden on a
patentee who has not begun to manufacture the patented
product is commensurately heavy."). The Court did not
weigh the evidence.
Court continues to find that Mr. Carter's failure to
account for the alternative actions Wabtec would foreseeably
have undertaken had it not infringed is a fatal flaw in his
application of Panduit. See Grain Processing Corp. v. Am.
Maize-Prods. Co., 185 F.3d 1341, 1350-51 (Fed. Cir.
1999) ("[A] fair and accurate reconstruction of the
'but for' market also must take into account, where
relevant, alternative actions the infringer foreseeably would
have undertaken had he not infringed."). As the Federal
Circuit has explained, it is "hardly likely" that a
company like Westinghouse would "surrender its complete
market share when faced with a patent, if it can compete in
some other lawful manner." Id. at 1351. Mr.
Carter's speculation that Siemens would have developed a
hybrid of Train Sentinel and TrainGuard and that this hybrid
product would have replaced all of Wabtec's sales is
unreliable in light of Mr. Carter's failure to consider
Westinghouse's alternatives (other than exiting the
market) in the but-for market. (See D.I. 412 at 7)
("Carter assumes that Defendants wold leave the PTC
market altogether, abandoning their customer relationships
and the extensive train control investment they made before
the issuance of the OBU Patents. Carter's assumption that
Defendants (and every other PTC company in the market) would
do nothing and allow Invensys and Siemens to usurp the U.S.
market infects his entire lost profits analysis for the OBU
and BOS Patents, rendering that analysis wholly
unreliable.") To perform its gatekeeping function, the
Court must exclude this unreliably flawed methodology.
Court is not persuaded that its decision, either on the
earlier motion or today, will result in manifest injustice.
considered the "Pennypack'' factors,
the Court is also denying Siemens' motion for leave to
serve a supplemental expert report of Mr. Carter. While the
revised report narrows the temporal period of lost profits,
Mr. Carter presents completely new opinions, including,
inter alia, a new "but for" world starting
in 2013 and a different product (TrainGuard rather than the
previously disclosed hybrid product). Siemens had every
opportunity to present this as an alternative theory earlier
in the case, including in one or more of Mr. Carter's
earlier reports. Siemens does not explain why it should be
permitted another opportunity to present what, in fairness,
is a new opinion when Siemens waited until after the Court
excluded the lost profits theory that Siemens chose to rely
on in full knowledge of Wabtec's challenges to it. While
the Court recognizes that the evidence is important and that
Siemens did not act in bad faith (instead, it seems simply to
have made a strategic decision), it would be unfairly
prejudicial to require Westinghouse to digest, rebut, and
depose these new opinions in the remaining 12 days before a
trial which already involves various theories of infringement
of 11 patents, willfulness, invalidity, and reasonable
royalty damages. Bifurcating or postponing trial would not
cure this prejudice (particularly as Westinghouse opposes
such measures) and would disrupt the orderly and efficient
trial of this case.
Daubert v. Merrell Dow Pharm., 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." The rule requires that expert
testimony "help the trier of fact to understand the
evidence or to determine a fact in issue." Fed.R.Evid.
702(a). There are three distinct requirements for admissible
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 generally Elcock v. Kmart
Corp., 233 F.3d 734, 741-46 (3d Cir. 2000). Hence,
expert testimony is admissible 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." Fed.R.Evid.
702(b)-(d). Rule 702 embodies a "liberal policy of
admissibility." Pineda v. Ford Motor Co., 520
F.3d 237, 243 (3d Cir. 2008). Motions to exclude evidence are
committed to the Court's discretion. See In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir. 1994).
denied Siemens' motion for reconsideration, the Court
also denies the two remaining issues in Siemens'
Daubert motion. (See D.I. 393 at 1-2)
First, the Court finds that Siemens' arguments regarding
whether non-infringing alternatives and design-arounds would
be available to Westinghouse and acceptable to its customers
"go to the weight of the expert's testimony, not to
the admissibility." Mobile Media Ideas, LLC v. Apple
Inc.,209 F.Supp.3d 756, 766 (D. Del. 2016) (denying
motion to exclude expert opinion on commercial acceptability
of non-infringing alternatives). Even though Mr. Martinez did
not speak to any of Westinghouse's customers, he relied
on industry sources and extensive technical analysis by
Westinghouse's technical experts. Second, the Court finds
that Mr. ...