Trial (Including Experts)

It was a family event at Baylor Law Sunday morning in Waco when I brought a full herd straight from our annual Kleypas family reunion campout to Baylor’s annual Top Gun mock trial competition. I was one of the judges for the semifinal round and Grayson James, fresh from two years of electrical and computer engineering classes, served as an expert witness (engineering expert on bicycles). Collin and Parker just hung out in the student lounge enjoying the wifi after two days roughing it playing … cards and dominos. In commemoration of Grayson’s second stint as a mock engineering expert (last summer he was an expert metallurgist in a Baylor mock trial about the sinking of the Titanic), I’m going through this recent order with pretrial rulings in an upcoming patent trial, which has more than a few rulings on expert testimony. The limines are pretty good as well.

Trust me – I’m an expert.

Expert testimony

After hearing his explanation, I was forced to conclude that finishing steaks with his skeptical Papa’s flamethrower would probably actually meet the reliability standard of Daubert. (This is why you shouldn’t let your kids watch Mythbusters, by the way). Similarly, Judge Gilstrap concluded that Samsung’s technical expert’s opinions were admissible except for his intriguingly named “dark level bias” opinion and his reference to Samsung’s patents and patent applications. The other motions seeking to strike expert opinions were also denied, except for part of one expert’s opinions dealing with new financial costs of goods sold.

Summary judgment motions

Moving right along, the Court denied Samsung’s motion for noninfringement based on an alleged violation of the claim construction order, as well as a second motion for summary judgment of noninfringement, which required the Court to sua sponte construe an additional claim term at the pretrial stage, which, in family reunion terms is like showing up drunk in a police car and looking for a collection from your cousins for fine money. Plaintiff’s motion for partial summary judgment was also denied, but Samsung’s motion for partial summary judgment of no pre-suit willful infringement struck gold. Not gold that’s actually worth much, but gold nonetheless.

Motions in Limine

Motions in limine are often where the fun is in pretrial conference orders (although, admittedly, you have to be looking for it). The order contains a helpful summary of the parties’ motions which were granted as unopposed. I say it is helpful because it’s good to know what topics your trial judge knows that parties have reached agreement on in prior cases before you decide to argue the same topic in your case. It’s not conclusive evidence that a topic should be agreed, of course, but it does let you know that you’re on something of a limb, and need to be prepared to argue it as well as Tatiana Terry of Campbell Law, who won the Top Gun competition (with its $10,000 prize) Sunday afternoon. (I had the pleasure of judging her in the semi round, and I’ve rarely seen crossexamination skills better put to use).

I love the memo line.

As for the ones that were not agreed, they also provide a good example of the sorts of rulings that are commonly seen on these issues. The rulings don’t always make intuitive sense on their face, but you need to know that on many of these topics the Court sometimes explains the reason for the denial in such a way that the net effect looks a lot like a grant.

At the conclusion of the order, the Court noted it was setting another pretrial hearing for exhibit disputes, and required a joint notice of what was still at issue shortly before COB the afternoon before the 9am hearing.

© 2019 Michael C. Smith, All Rights Reserved.

This blog does not constitute legal advice. If you’d like to discuss a related legal matter, please contact Michael C. Smith via email or call 903-938-8900.