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.”
Orders granting even part (sometimes especially ones granting only part) of motions to strike expert witnesses are always of interest to practitioners, since they provide guidance on which opinions are in and which are out.
This motion sought to exclude certain portions of a patent defendant’s infringement expert, and was granted, but only in part.
A couple of Daubert rulings today put me in mind of Ghostbusters. Remember the Gatekeeper and the Keymaster? Well, the outcome of these “gatekeeper” motions may or may not have been as catastrophic to the parties in these cases – it’s usually difficult to tell with the part in/ part out rulings – but as usual they do provide some insight into why some opinions are ruled in or out, and some useful guidance on which challenges are worth making and which aren’t..
I have been doing the one-armed paper hanger thing in recent weeks getting ready for some upcoming trials and hearings (including last Friday in Texarkana where cocounsel Brent Carpenter and I celebrated enjoying the hell out of practicing law by taking a selfie outside the courthouse) and have just been able to turn to some of the more interesting recent orders.
A couple of weeks ago I posted that Judge Payne had decided to vacate the damages award in the Ericsson v. TCL case. The opinion is now out and explains the basis for the Court’s decision – as well as noting that the infringement JMOLs will be denied.
This is a patent case dealing with mobile antennas. Defendant filed a motion to exclude testimony from two of the Plaintiff’s experts. Judge Mazzant granted the motion in part, and in doing so set forth the relevant standards for expert testimony and answered a number of questions about whether certain types of opinions are categorically inadmissible.
This is a breach of contract case arising out of the agreement to settle a patent infringement lawsuit. The motion at issue seeks to strike the plaintiff’s damages expert from allegedly interpreting the contract, i.e. whether certain conduct constituted use, and thus a breach; and (2) because the expert relied on “cherry-picked screen shots and hearsay.” The order provides a useful summary of the relevant standards for motions to strike experts, just in case you wanted to steal some really language for your boilerplate files, and a couple of holdings that might be worth referring to in future cases.
This is a opinion from Judge Richard Schell resolving six motions in a case involving a defendant’s liability for cargo damage, including most notably, cross motions for summary judgment as to whether Defendant BNSF was liable for cargo damage following a derailment.
It’s often helpful to cut something open to see how it works. During World War II, the Navy cut open a damaged PBY Catalina flying boat and mounted it on a wall in a training facility in Pensacola to help train sailors who would be crewing its sister craft. The cutaway PBY was a local fixture from 1944 to 1997, and was eventually moved to the nearby National Museum of Naval Aviation to sit under a fully restored version, where my youngest son Parker (who’s a certified WW II plane nut) got to study it up close. (That I have a PBY on my work bench at the moment had nothing to do with the trip. Honest)
Readers will recall that I posted last month that a Marshall jury in Judge Roy Payne’s court returned a verdict last month in favor of Ericsson in a case brought against TCL Communications and set damages at $75 million. Two of the numerous pretrial rulings in that case were on the defendant’s motions for summary judgment under Section 101, and on the plaintiff’s claims of willful infringement, both of which Judge Payne denied.
Since the 101 ruling runs against the recent trend of more than half of 101 rulings going the defendant’s way, it is worth a review. But the one I really want to focus on is the willfulness ruling because, as the Court wrote, “it is helpful to explain the standard as it stands today [post-Halo]” which began a metaphorical popping off of the fuselage panels on the standard in order to spend several pages poking around on what the wilfulness standard requires, and what factors need to be considered when deciding whether to bifurcate a willfulness claim. When you’re done reading it, you might find yourself with the same thought I had after studying the interior of a full-size PBY – I have really not understood how this thing fits together, and I have really screwed up ….
In the old days, before people had to figure out how Daubert is pronounced (the family in the litigation pronounces it “Dobbert”, so you can be all French and everything, but you’d be all wrong too – and I say that as a French major), experts simply said what they said, and if the expert’s opinions were that poor, the jury not only disregarded them after the expert had been destroyed on cross, but punished the rest of your case too for presuming to waste their time with such awful testimony. Of course if your expert presenting the termite-ridden opinions was better than the lawyer cross examining them, things got interesting, but we’re not going to talk about George Greene right now.
One of the interesting things about damages testimony, specifically in patent cases, is that since the Federal Circuit has ruled certain economic calculations out as a matter of law for various reasons, the inquiry when determining whether a damages expert can testify as to an opinion at trial is not always simply that the flaws in the opinions go to the weight (with the experienced trial judge knowing that the system tends to be self-correcting because flawed opinions tend to kick harder than they shoot) but sometimes whether the opinion itself is legally impermissible under controlling caselaw.
The attached is a recent opinion out of Tyler where some of these allegations were levelled against a couple of experts, and the Court’s analysis provided hopefully some useful discussion of when flaws in the expert’s opinion fall on weight side of the scale, as opposed to admissibility. The point above – that bad opinions don’t do well at trial – may have been the lesson from this case as well.