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Brandt v. Honnecke

United States District Court, D. Colorado

September 25, 2018

STEVEN LEE BRANDT, an individual, JAMES CLAY WALTERS, an individual, and COLORADO BOX COMPANY, INC., a Colorado corporation, Plaintiffs,
VON HONNECKE, an individual, CHASE HONNECKE, an individual, and S & H SHEET METAL, INC., a Colorado corporation, Defendants.



         This matter is before the Court on Plaintiffs' Motion to Exclude Opinion Testimony of Mr. J. Gregory Whitehair (the “Motion”) (ECF No. 124), seeking to exclude Mr. Whitehair's report (and associated testimony). Defendants have filed a Response, to which Plaintiffs have filed a Reply. (ECF Nos. 135, 140.) The Motion is ripe for resolution.

         I. BACKGROUND

         Plaintiffs accuse Defendants of infringing U.S. Patent No. 8, 999, 029 (the “'029 Patent”), raising claims of direct infringement, inducing infringement, and contributory infringement. Defendants raise numerous defenses and counterclaims of non-infringement, invalidity, and unenforceability of the '029 Patent. In support of their claims, Plaintiffs submitted the affirmative expert report of Michael E. Aiken, P.E. Thereafter, on September 29, 2017, Defendants served the expert report of Mr. Whitehair, as a purported rebuttal to Mr. Aiken's report. Plaintiffs' Motion seeks to exclude Mr. Whitehair's testimony based on the following arguments: (1) Mr. Whitehair's report is not proper rebuttal testimony; (2) Mr. Whitehair is not qualified to offer testimony on patent prosecution or examination practices; and (3) Mr. Whitehair has not applied consistent or reliable methodologies in his opinions. Defendants argue otherwise.


         A. Rebuttal and Fed.R.Civ.P. 26

         Rebuttal evidence is that “intended solely to contradict or rebut evidence on the same subject matter identified by another party.” Fed.R.Civ.P. 26(a)(2)(D)(ii) (emphasis added). Thus, rebuttal reports are by nature responsive and necessitate a showing supporting the opposite conclusion of those which the opposing party's expert arrived at in his report. See 103 Investors I, L.P. v. Square D. Co., 372 F.3d 1213, 1217-18 (10th Cir. 2004) (expert report proper rebuttal where “its main thrust was to rebut” opposing expert's assertions). They are not the place for presenting new arguments, 1-800 Contacts, Inc. v. Lens. com, Inc., 755 F.Supp.2d 1151, 1167 (D. Utah 2010), rev'd in part on other grounds, 722 F.3d 1229 (10th Cir. 2013), or raising subjects which were not addressed in the expert report purportedly being rebutted, see Deseret Mgmt. Corp. v. United States, 97 Fed.Cl. 272, 274 (2011) (rebuttal expert report must address the same subject matter as the report it contradicts). Accordingly, those parts of an expert's rebuttal report that address subjects that were not addressed in the affirmative expert report purportedly being rebutted should be excluded. Plumley v. Mockett, 836 F.Supp.2d 1053, 1065 (C.D. Cal. 2010) (citing First Years, Inc. v. Munchkin, Inc., 575 F.Supp.2d 1002, 1008 (W.D. Wisc. 2008)); D'Andrea Bros. LLC v. United States, No. 08-286C, 2012 WL 644010, at *3 (Fed. Cl. Feb. 10, 2012) (same).

         B. Daubert and F.R.E. 702

         Rule 702 of the Federal Rules of Evidence (“Rule 702”) governs the admission of expert evidence in federal court. Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Rule 702 provides as follows:

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. Under Rule 702, the Court performs a two-step analysis. “First, the court must determine whether the expert is qualified by ‘knowledge, skill, experience, training, or education' to render an opinion.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006) (quoting Fed.R.Evid. 702). Second, the specific proffered opinions must be assessed for reliability. See id.

         In assessing reliability, the Court's role in considering proposed expert evidence is one of a “gatekeeper” - to ensure the “‘evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)); Kumho Tire, 526 U.S. at 147. Factors that may be relevant in performing this role include: (1) whether a theory or technique can be or has been tested; (2) whether a theory or technique has been subjected to peer review and publication; (3) whether there is a high known or potential rate of error to a technique and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant community. Id. at 149-150. These factors, however, may or may not be relevant, “depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).

         The proponent of expert evidence bears the burden of establishing its admissibility. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).

         III. ...

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