Nanometrics, Incorporated v. Optical Solutions, Inc.

Filing 221

ORDER GRANTING RESERVED PORTION OF 163 NANOMETRICS, INC.'S MOTION IN LIMINE NO. 2. Signed by Judge Beth Labson Freeman on 11/21/2023. (mdllc, COURT STAFF) (Filed on 11/21/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OPTICAL SOLUTIONS, INC., et al.,
Plaintiffs,

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United States District Court
Northern District of California

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v.

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NANOMETRICS, INCORPORATED, et
al.,

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Defendants.

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NANOMETRICS, INCORPORATED, et
al.,

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Case No. 18-cv-00417-BLF
ORDER GRANTING RESERVED
PORTION OF NANOMETRICS, INC.’S
MOTION IN LIMINE NO. 2
Re: ECF Nos. 163, 191

Cross-Plaintiffs,
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v.
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OPTICAL SOLUTIONS, INC., et al.,
Cross-Defendants.

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On October 20, 2023, the Court held a pretrial conference in this action, during which it

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issued oral rulings on Nanometrics, Inc.’s motions in limine. The Court subsequently issued an

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order the (“MILs Order”) expanding on those oral rulings. See Order Re Nanometrics’s MILs,

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ECF No. 191. As explained in the MILs Order, the Court reserved its decision as to the portion of

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Nanometrics’s Motion in Limine No. 2 (“MIL No. 2”), ECF No. 163, seeking to exclude Richard

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Trissel from testifying as an expert witness for Optical Solutions, Inc. (“Optical”) regarding his

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opinion on whether a lens design he created for Optical met Nanometrics’s design specifications

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for 25-micron lenses. See Order Re Nanometrics’s MILs 4–5, 7. On November 17, 2023, the

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Court held an evidentiary hearing, during which Mr. Trissel testified as to the basis for his

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opinion, and issued an oral ruling granting the reserved portion of Nanometrics’s MIL No. 2. The

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Court now expands on that oral ruling.

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I.

Federal Rule of Evidence 702 permits a witness to testify as an expert if “(a) the

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United States District Court
Northern District of California

LEGAL STANDARD

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[witness’s] scientific, technical, or other specialized knowledge will help the trier of fact to

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understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient

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facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert

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has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(a)–(d).

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Further, an amended version of Rule 702 will go into effect on December 1, 2023—absent action

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from Congress following the Supreme Court’s provision of proposed amendments—under which a

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party proffering an expert will have to demonstrate to the court that elements (a) through (d) are

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more likely than not to be true, and Rule 702(d) will require “the expert’s opinion [to] reflect[] a

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reliable application of the principles and methods to the facts of the case.” See, e.g., Kristen M.

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Bush & Kayla M. Kuhn, Proposed Amendments to Federal Rule of Evidence 702 and Their

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Impact on Expert Discovery, American Bar Association, https://www.americanbar.org/groups/tort

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_trial_insurance_practice/ publications/the_brief/ 2022- 23/winter/proposed-amendments-federal-

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rule-evidence-702-and-their-impact-expert-discovery/ (June 14, 2023).
Trial in this action is scheduled to begin on December 4, 2023, at which point the amended

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version of Rule 702 will be in effect.

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II.

DISCUSSION

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Nanometrics seeks to exclude Mr. Trissel’s opinion that his 25-micron optical lens design

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met Nanometrics’s design specifications, on the ground that Mr. Trissel’s report does not identify

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a methodology or analysis backed by an objective source on which his opinion is based. See MIL

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No. 2, at 1, 2–3. Optical counters that Mr. Trissel’s education and experience as an optical

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designer qualify him as an expert, and that he is able to establish a methodology sufficient to form

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a basis for his expert testimony. See Opp’n to MIL No. 2, ECF No. 179.

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At the evidentiary hearing, Mr. Trissel described his use of the modeling, optimization, and

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analytical tool of Zemax, a software program for optical lens designers, to create and test a lens

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design in response to Nanometrics’s specifications for a 25-micron lens. Mr. Trissel is clearly

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knowledgeable about Nanometrics’s design specifications and the specialized processes he
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United States District Court
Northern District of California

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undertook to achieve a 25-micron lens design that he believed met those specifications. That is,

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Mr. Trissel’s testimony is, at bottom, a description of what he did to design the lens and why he

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made his design choices, all based on his experience. But “the test under Daubert is not the

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correctness of the expert’s conclusions, but the soundness of his methodology.” Daubert v.

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Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995). Neither Mr. Trissel’s proffered

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expert report, see Decl. of Ryan C. Stevens in Supp. of Nanometrics’ Mots. in Limine Nos. 1–5,

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Exh. 5, ECF No. 167-1, nor his testimony at the evidentiary hearing, indicate that Mr. Trissel’s

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opinion on whether his lens design met Nanometrics’s specifications is “the product of reliable

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principles and methods,” see Fed. R. Evid. 702(c), or that Mr. Trissel “reliably applied the

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principles and methods to the facts of the case,” see id. at 702(d), let alone that his opinion meets

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the more stringent standard under the amendment to Rule 702(d)—which will be in force by the

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time Mr. Trissel testifies at trial—by “reflecting a reliable application of the principles and

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methods.” See Daubert, 43 F.3d at 1319 (“[These materials] neither explain the methodology the

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experts followed to reach their conclusions nor point to any external source to validate that

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methodology . . . [and] that’s not enough.”).

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Accordingly, the Court hereby GRANTS the reserved portion of Nanometrics’s Motion in

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Limine No. 2, so that Mr. Trissel may not provide expert opinion testimony as to whether his 25-

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micron lens design met Nanometrics’s design specifications. This decision does not preclude

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Optical from eliciting percipient witness testimony from Mr. Trissel regarding his experience and

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his work on the 25-micron lens design, or Nanometrics from objecting to such testimony at trial.

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IT IS SO ORDERED.
Dated: November 21, 2023

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Beth Labson Freeman
United States District Judge

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