Greenberg Traurig LLP v. Gale Corp.

Filing 99

ORDER signed by Judge Morrison C. England, Jr on 11/2/09 ORDERING third party dfts' Motion in Limine No. 1 to Preclude Ultimate Testimony 73 is DENIED. (Carlos, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ____________________________ 21 ----oo0oo---22 23 24 25 26 27 28 At the time of the Court's October 22, 2009 hearing on the parties' in limine requests, further briefing was requested with respect to Third Party Defendants' Motion in Limine No. 1, which seeks to preclude ultimate issue testimony by Third Party Plaintiff Gale Corporation's experts in this matter. 1 v. GALE CORP., a California corporation also known as GALE CORPORATION, Defendants. ____________________________ AND RELATED COUNTERCLAIM AND THIRD PARTY CLAIM. GREENBERG TRAURIG, LLP, a New York limited liability partnership, Plaintiff, ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

No. 2:07-cv-01572-MCE-DAD

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That briefing now having been received, and following further consideration of the original papers submitted and arguments presented by counsel, the Court will deny said Motion in Limine No. 1. The Court concludes that the presentation of expert testimony is governed by federal law, and specifically by Federal Rules of Evidence 702 and 704, which permits edperts to testify in the form of an opinion, even if the testimony goes to an ultimate issue, if the expert's specialized knowledge will assist the trier of fact. The Court rejects Third Party Defendants' contention that such testimony is governed by state law. The Federal Circuit has

unequivocally held that legal malpractice claims relating to alleged negligence during the course of a patent case "arise under" federal patent law. See Air Measurement Technologies,

Inc. v. Akin Gump Strauus Hauer & Feld, 504 F.3d 1262, 1273 (Fed Cir. 2007); see also Immunocept LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1285 (Fed Cir. 2007). Even California courts have

held they lack jurisdiction over legal malpractice claims relating to patent. Lockwood v. Sheppard, Mullin, Richter & Consequently issues

Hampton, 173 Cal. App. 4th 675, 687 (2009).

pertaining to expert testimony should be determined by reference to federal law. /// /// /// /// /// 2

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While Third Party Defendants cite the Supreme Court's decision in Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (2002), that case is inapposite. While the

Holmes court did find that a patent counterclaim was ineffective in conferring jurisdiction on a case-in-chief not otherwise involving patent claims, here we have a separate Third Party Complaint alleging legal malpractice, which constitutes a separate legal pleading under Federal Rule of Civil Procedure 7(a)(5). Moreover, Greenberg's initial complaint has been

dismissed in its entirety, leaving for adjudication at trial only Gale's Third Party Complaint alleging legal malpractice. For all these reasons, Third Party Defendants' Motion in Limine No. 1 is hereby DENIED. IT IS SO ORDERED. Dated: November 2, 2009

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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