United States District Court, D. Colorado
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.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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
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.
Rebuttal and Fed.R.Civ.P. 26
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).
Daubert and F.R.E. 702
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.
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.
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).
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).