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Arason Enterprises, Inc. v. Cabinetbed Inc.

United States District Court, D. Colorado

September 23, 2019



          Philip A. Brimmer Chief United States District Judge.

         This matter is before the Court on Defendant CabinetBed Inc.’s Motion to Exclude Testimony of Adrian Slattery on Alleged Infringement [Docket No. 62] and Defendant CabinetBed Inc.’s Motion to Exclude Testimony of René Poulin [sic] on Alleged Invalidity [Docket No. 63]. Plaintiff filed a response to both motions [Docket Nos. 73, 74], to which defendant replied. Docket Nos. 76, 77.

         I. BACKGROUND

         Plaintiff Arason Enterprises, Inc. asserts claims of patent infringement against defendant CabinetBed Inc. related to defendant’s sale of Murphy-style “cabinet beds” wherein a folded mattress is contained inside a chest-shaped piece furniture and can be deployed as a bed. Docket No. 5 at 2, ¶ 6, at 4, ¶ 24; see generally Id . at 6-7. Plaintiff is the assignee of United States Patent No. 7, 574, 785 (“the ’758 patent”), a utility patent entitled “FOLDING CABINET BED WITH TELESCOPING SLIDE-OUT SUPPORT PLATFORM.” Docket No. 75 at 4, ¶ 14. The invention’s structure is described as a “folding cabinet bed [that] includes a cabinet of sufficient size to enclose a standard size folded futon mattress, and allows the mattress to be deployed as a bed." Docket No. 40-2 at 1. The cabinet structure contains a drawer that extends via telescoping rails. 758 Patent at col. 5, II. 26-32. When the telescoping rails are extended, the extendable structure provides support for the sleeping platform, which is formed from the front wall of the cabinet, an extension panel, and the mattress contained in the cabinet. Id., II. 36-53.

         (Image Omitted)

         758 patent, Fig. 5. Plaintiff alleges that defendant has infringed upon claim 1 of the 758 patent. Docket No. 75 at 4, U 16. Claim 1 is directed to, among other things, "[a] folding cabinet bed system, comprising[] a cabinet assembly, comprising[] [an] extendable structure [that] supports said front wall and said extension panel when said front wall and said extension panel are in the open position." 758 patent, claim 1, II. 7:49-51, 8:35-37. Specifically, plaintiff alleges that defendant's "Stanley" cabinet bed infringes upon the '758 patent:

         (Image Omitted)

         Docket No. 1-2 at 6. The accused invention also has an extendable drawer at the bottom of its structure, but this drawer does not extend the full length of the extension panel, which reaches approximately fifty-five inches. Docket No. 62-1 at 12, II. 22-24. Instead, this drawer extends eighteen inches. Id., II. 20-21.

         This Court issued a claim construction order on September 30, 2018 in which the Court construed the parties' disputed claim terms. Docket No. 54. Defendant has now filed motions to exclude the opinions of two of plaintiff's expert witnesses. Docket Nos. 62, 63.


         Rule 702 of the Federal Rules of Evidence provides that:

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. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court must “perform[] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).After determining whether the expert is qualified, the proffered opinions must be assessed for reliability. See id.; Fed.R.Evid. 702 (requiring that the testimony be “based on sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods to the facts of the case”).

         Rule 702 imposes on the district court a “gatekeeper function to ‘ensure that any and all scientific testimony or 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 Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To perform that function, the Court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). Where an expert witness relies on experience, the expert “‘must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed.R.Evid. 702, advisory committee notes). When examining an expert's method, however, the inquiry should not be aimed at the “exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” Daubert, 509 U.S. at 597. It is the specific relationship between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute that renders testimony both reliable and relevant.

         In addition to the witness having appropriate qualifications and methods, the proponent of the witness’ opinions must demonstrate that the process by which the witness derived his or her opinions is reliable. United States v. Crabbe, 556 F.Supp.2d 1217, 1220 (D. Colo. 2008). “[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.

         While the proponent of the challenged testimony has the burden of establishing admissibility, the proffer is tested against the standard of reliability, not correctness, see Allstate Sweeping, LLC v. City & Cty. of Denver, No. 10-cv-00290-WJM-MJW, 2011 WL 2173997, at *3 (D. Colo. June 2, 2011); the proponent need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” Crabbe, 556 F.Supp.2d at 1221.

         Assuming the standard for reliability is met, the Court must also ensure that the proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). “Relevant expert testimony must logically advance[] a material aspect of the case and be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (internal quotation marks and citations omitted). In assessing whether expert testimony will assist the trier of fact, the Court should also consider “whether the testimony ‘is within the juror’s common knowledge and experience, ’ and ‘whether it will usurp the juror’s role of evaluating a witness’s credibility.’” Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).

         III. ANALYSIS[1]

         A. Adrian Slattery

         Defendant seeks to exclude two opinions in Mr. Slattery’s expert report. First, it seeks to exclude Mr. Slattery’s opinion “that Cabinetbed’s ‘Standard’ cabinet bed infringes on at least Claim 1 of the ’758 patent.” Docket No. 61-1 at 3, ¶ 10. Second, it seeks to exclude Mr. Slattery’s opinions “set forth . . . on pages 21 and 36-38 of [his] accompanying chart.” Docket No. 62 at 2. On these pages, Mr. Slattery opines (1) that the accused structure contains a “support piece” that is “configured to prop up the top piece, ” Docket No. 61-1 at 28; (2) that the accused structure has an extendable structure that “supports the opened front wall and opened extension panel, ” id. at 43; and (3) that the accused structure contains “telescoping rails” that are “sized and configured to accommodate the size of the front wall and extension panel.” Id. at 44-45. Essentially, these three opinions provide one of the bases for Mr. Slattery’s opinion that the accused structure infringes upon claim 1 of the ’758 patent.

         1. Opinion on infringement

         Defendant argues that Mr. Slattery’s infringement opinion should be excluded because “he does not understand the framework for performing a proper infringement analysis.” Docket No. 62 at 6; see also Id . at 4 (“Mr. Slattery has no understanding of literal infringement.”). Defendant does not challenge Mr. Slattery’s qualifications to testify as an expert. See Docket No. 76 at 8. The fact that Mr. Slattery is not a patent lawyer does not disqualify him from offering an opinion on infringement. See Endress Hauser, Inc. v. Hawk Measurement Sys. Pty. Ltd., 122 F.3d 1040, 1042 (Fed. Cir. 1997) (rejecting notion that “only lawyers or patent lawyers can be expert witness[es] in a patent suit”); see also Robert A. Matthews, Jr., 7 Annotated Patent Digest § 44:70 (June 2019) (“Technical experts showing they have the necessary technical knowledge of ...

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