United States District Court, D. Colorado
A. Brimmer Chief United States District Judge.
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.
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.
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:
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.
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.
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
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.
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.
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.
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).
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.
Opinion on infringement
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 ...