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Brandt v. Honnecke

United States District Court, D. Colorado

September 28, 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 Opinions of Messrs. Honnecke and Gardner (the “Motion”) (ECF No. 125), seeking to exclude Defendants' two non-retained experts Von Honnecke and Tom Gardner. Defendants have filed a Response, to which Plaintiffs have filed a Reply. (ECF Nos. 136, 141.) The Motion is ripe for resolution.[1]

         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 noninfringement, invalidity, and unenforceability of the '029 Patent. Plaintiffs served affirmative expert reports from Michael Aitkin[2] (infringement) and Mark Pedigo (damages) on or about August 29, 2017, the deadline for affirmative expert disclosures. Thereafter, on September 29, 2017, the rebuttal expert disclosure deadline, Defendants served two Fed.R.Civ.P. 26(a)(2)(C) disclosures (hereafter, “Reports”), one of Mr. Honnecke and one of Mr. Gardner. Messrs. Honnecke and Gardner are offered as rebuttal experts on the issues of infringement, enforceability, and validity. Mr. Honnecke is also offered as a rebuttal expert on the issue of damages. Mr. Gardner is also offered to testify under Fed.R.Evid. 701.

         Plaintiffs' Motion seeks to exclude Messrs. Honnecke's and Gardner's testimony based on the following arguments: (1) 10 of the 13 proffered topics allegedly relating to “infringement, validity, and enforceability” are not proper rebuttal but, instead, untimely affirmative testimony; (2) they are not qualified to testify regarding the topics addressed; and (3) their testimony is based on assumptions and speculation, is biased, and is unreliable. Defendants argue otherwise.[3]


         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). 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 (Fed. Cir. 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, 826 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 Fed.R.Evid. 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 Rule 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).

         C. Fed.R.Evid. 701

         Lay opinion testimony may be admitted if it is helpful to the jury; if it is based on the perception of the witness; and if it is not expert testimony under Fed.R.Evid. 702. See Fed. R. Evid. 701. Thus, a lay witness “may ‘offer observations that are common enough and require a limited amount of expertise, if any.'” United States v. Kearn, 863 F.3d 1299, 1311-12 (10th Cir. 2017), cert. denied, 138 S.Ct. 2025, 201 L.Ed.2d 282 (2018) (brackets and ellipses omitted) (quoting James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011)). He or she may not, however, express an opinion on “‘matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.'” Kearn, 863 F.3d at 1311-12 (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)).

         III. ANALYSIS

         A. The Number of Experts

         Plaintiffs contend Defendants exceeded the number of experts allowed under the Scheduling Order as they have three where the maximum number is two. Plaintiffs cite no authority to support exclusion on the facts of this case and provide no evidence of any prejudice by Defendants' proffer. Further, the Court has excluded Mr. Whitehair as an expert. On this record, the Court will not preclude Mr. Honnecke's or Mr. Gardner's testimony on the basis that Defendants have exceeded the number of experts allotted.

         B. Untimely Rebuttal Testimony

         Defendants intend to offer Messrs. Honnecke and Gardner to testify about 13 topics asserted to be relevant to the issues of infringement, enforceability, and invalidity: “(1) publication, use and sale of prior art devices and methods making and using the same, which render the patent claims invalid and/or unenforceable; (2) the level of ordinary skill in the pertinent art at the time of the invention; (3) the scope and content of the prior art; (4) the differences between the prior art and the claimed invention; (5) the motivation to modify the prior art, or combine references, to arrive at the claimed invention; (6) obviousness to persons having ordinary skill in the art in and/or in view of the above; (7) anticipation based upon [] those prior art devices and methods, on a claim-by claim basis; (8) comparison of the elements of the claims, on a claim-by-claim basis, and respective absence of direct infringement; (9) comparison of the prior art and opinion of the scope of equivalency, on a claim-by-claim basis, in view of the prior art devices and methods by a person of ordinary skill in the art[;] (10) [] absence of infringement, on a claim-by-claim basis, under the doctrine of equivalents; (11) absence of infringement of any alleged third party apparatus or method, on a claim-by-claim basis; (12) substantial non infringing uses for any apparatus or components thereof, including staple articles of commerce capable of being a substantial ...

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