Motions to strike expert testimony usually attack multiple opinions by the expert, and orders not infrequently deny some, but not all of the grounds. This order provides an example of that … and oh so much more.
It’s expert testimony day around the Smith household today, as our oldest Grayson hits the witness stand as an “expert” witness in one of the Practice Court “big trials” at Baylor Law School in Waco. The grazing is pretty thin for students to act as witnesses in the summer so they’re willing to take a rising sophomore engineering student as an “expert metallurgist” to testify – in fact they advertised for them. I can relate. I did my big trial, also on a maritime theme, 27 years ago, and we had to bribe classmates “studying for the bar” to take an afternoon off from the pool to testify.
So Grayson is looking forward to spending this afternoon and a bit of tomorrow after his Calc 2 class lets out expounding on the defects in the iron rivets that were used in the construction of the Titanic, shown above on her building slip in Belfast.
Oddly, he’s been there – here he is with his brother Parker walking near the outline of Titanic’s bow at her building slip in the old Harland & Wolff shipyard in Belfast. And he’s built an arc furnace using parts of a dry cell battery, melts metal for fun, and cooks steaks with a blowtorch. So he’s going to be one of those “I know it all” experts, which should provide good experience for the students directing and crossing him. And he might learn a little humility (but I doubt it).
Of course there’s a related EDTX case involving experts and heat, which is the attached opinion from Judge Gilstrap last month declining to strike an expert’s opinion in a case involving the remodeling of genital tissue by applying heat to certain target tissue. The Court concluded that the expert’s opinions and testimony “are not contrary to the Court’s construction. To the extent Defendants disagree with [the expert’s] opinions, that disagreement can be adequately addressed via vigorous crossexamination and through the presentation of contrary evidence and expert testimony.”
Reader: There is no way you can connect pictures of a sunken aircraft carrier’s planes to damages defenses in patent cases.
Me: Hold my beer.
The discovery of the wreck of the old Lexington (CV-2) sunk at the Battle of the Coral Sea was almost an anticlimax after the wreck was found to have dozens of nearly perfectly preserved aircraft that had apparently floated off the carrier’s flight deck as it sank. Most notable were several TBD Devastator torpedo bombers and F4F-3 Wildcat fighters in part because even after 76 years at the bottom of the Pacific the aircraft still had nearly pristine … markings.
In patent cases, whether or not products were marked can have a major effect on the recoverable damages. And in a way not really at all similar to the way that submersion for 76 years at the bottom of the Pacific didn’t erase the Felix the Cat insignia on the F4Fs, the facts of how products were marked can make damages recoverable, or at least shift the burden under Arctic Cat.
This recent decision provides another useful analysis of when the burden was successfully shifted, and when there is a triable issue as to whether Plaintiff provided actual notice under § 287 before the lawsuit.
A familiar feature on the 100 block of East Austin in Marshall is the something called “the Hub”. The Hub is a large wagon wheel hub symbol used by the Hub Shoe Store that occupied my offices from 1897-2009. About once a century the Hub (which is actually a 19th century wooden barrel skinned with metal to look like a wagon wheel without its spokes) needs more than just a paint job and has to be take down for repairs.
Today was that day, so after removing rivets and nails from the McKinley Administration we made sure it was belted in properly for its trip to the local metalsmith. It’ll be back in a couple of weeks.
What will not be back in a couple of weeks is this patent infringement action brought by a medical device company against a competitor in which it asserted that the defendants’ distributors satisfied the “regular and established business” prong of the venue statute.
Come to think of it, with general jurisdiction rare, and specific jurisdiction also hard to come by – maybe there is a romance novel in there someplace. When you can get jurisdictional discovery and what you can get are beyond the scope of this order in a case where the existence of personal jurisdiction was challenged. But it does tell you what the timing would be and how it affects your briefing schedule.
The most important Marshall venue opinion today is the news that we’re getting a Dairy Queen, after decades without one. We actually had two when I was growing up – but no McDonalds – when that opened around 1980 the MHS band played at its dedication and I was honking away back in the trombone section. And I’m old enough to remember when my grandfather had to drive us to Longview to go to an El Chico’s. We don’t have that now either, but it was replaced with one of many quality chicken establishments. (Candidly, I still recommend the pizza).
But I digress.
As I mentioned the other day, we’re seeing a number of new venue opinions in recent weeks, and I wanted to start analyzing the ones coming out of Marshall, albeit from different judges. The first is by Judge Gilstrap, but I’ll be following up with decisions by Judge Payne and visiting Judge William Bryson of the Federal Circuit, as well as more by Judge Gilstrap. But this is one you’ll want to study for your form files as it has new language and analysis that litigants will find useful.
One of the phrases in trial practice that rarely makes it into writing is “opening the door”, so it was nice to see an order from a recent case ruling on a motion entitled Plaintiff’s Motion Regarding Door Opening Under MIL No. 3.
I wanted to go through the basics of what happened between the pretrial ruling granting the motion in limine excluding the bad stuff and the ruling at trial that the door had in fact been opened, which let the bad stuff – which, again, the party had succeeded in keeping out pretrial – in.
If you’ve ever tried to limine out evidence of IPR proceeedings, and seriously, who of us hasn’t, you might be interested in this issue.
A Marshall jury in Judge Gilstrap’s court found the asserted claims willfully infringed in the Kaist case and awarded $400 million. It also rejected all of the asserted invalidity defenses. The plaintiff is the intellectual property arm of a South Korean research university. The defendants are Samsung Electronics Co., Ltd, Qualcomm, Inc., and GlobalFoundries Inc..
A quick review indicates that this is the largest patent verdict in Marshall since January of 2011 in a medical device case, and the second largest in Judge Gilstrap’s court in the six-plus years he has been on the bench. The only one larger was a Tyler case, Smartflash, which he set aside in postjudgment proceedings.
I’ll post separately on where that leaves us on verdicts compared to last year, and will attach the verdict when it’s posted.
This venue opinion is sort of a double-header, since it includes an order from Magistrate Judge Love, followed by a second order overruling objections to a different report & recommendation from Judge Love by Judge Schroeder. So maybe that’s a tripleheader, but the middle one is secret.
There are a number of significant recent venue opinions in the past few days – significant because they’re all from different judges. The week is getting busy with hearings and hearing prep, but I wanted to start rolling out commentary, beginning with this one from Judge Mazzant in Sherman.