Phillips v. Duane Morris, LLP et al

Filing 86

ORDER denying Defendant's 63 Motion to Exclude Plaintiff's Expert William A. Trine Under Fed.R.Evid.702. By Judge Robert E. Blackburn on 5/29/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01105-REB-MJW
EDWARD H. PHILLIPS, an individual,
Plaintiff,
v.
DUANE MORRIS, LLP, a limited liability partnership,
JOHN C. HERMAN, individually and as partner of Duane Morris, LLP, and
ALLEN C. GREENBERG, individually and as a partner of Duane Morris, LLP,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO EXCLUDE
PLAINTIFF’S EXPERT WILLIAM A. TRINE UNDER FED.R.EVID. 702
Blackburn, J.
The matter before me is Defendants’ Motion To Exclude Plaintiff’s Expert
William A. Trine Under Fed. R. Evid. 702 [#63],1 filed April 25, 2014. I deny the
motion.
I. JURISDICTION
I have jurisdiction over this case pursuant to 28 U.S.C. § 1331 (diversity of
citizenship).
II. STANDARD OF REVIEW
By this motion, defendants seek to exclude the opinions of plaintiff’s designated
expert, William A. Trine. Rule 702 of the Federal Rules of Evidence, which governs the
admissibility of expert witness testimony, provides that
1
“[#63]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

[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 interpreted by the Supreme Court, Rule 702 requires that an
expert’s testimony be both reliable, in that the witness is qualified to testify regarding the
subject, and relevant, in that it will assist the trier in determining a fact in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786,
2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360
F.3d 1206, 1210 (10th Cir. 2004). The Supreme Court has described the court’s role in
weighing expert opinions against these standards as that of a “gatekeeper.” See
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174,
142 L.Ed.2d 248 (1999).
Under Daubert and its progeny, an expert opinion is reliable if it is based on
scientific knowledge. “The adjective ‘scientific’ implies a grounding in the methods and
procedures of science. Similarly the word ‘knowledge’ connotes more than subjective
belief or unsupported speculation.” Daubert, 113 S.Ct. at 2795. In short, the
touchstone of reliability is “whether the reasoning or methodology underlying the
testimony is scientifically valid.” Id.
The Tenth Circuit employs a two-step analysis when considering the admissibility
of expert testimony under Rule 702. 103 Investors I, L.P. v. Square D Co., 470 F.3d

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985, 990 (10th Cir. 2006). The first step is codified in Rule 702(a) and inquires whether
the expert “is qualified . . . to render an opinion.” Id. A witness may be qualified as an
expert by “knowledge, skill, experience, training, or education.” FED. R. EVID. 702. In
addressing an expert qualifications, the court should examine:
whether the witness proposes to testify about matters
growing naturally and directly out of research he or she
conducted independent of the litigation, whether the witness
developed opinions expressly for purposes of testifying, and
whether the field of expertise claimed by the witness is
known to reach reliable results for the type of opinion the
witness intends to express.
United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008).
The second step of the admissibility analysis, codified in Rules 702(b), (c), and
(d), examines “whether the expert’s opinion is reliable.” 103 Investors I, 470 F.3d at
990. Pursuant to Rule 702(b), “the proponent of the opinion must show that the witness
gathered ‘sufficient facts or data’ to formulate the opinion.” Crabbe, 556 F.Supp.2d at
1223. This inquiry calls for a “quantitative rather than qualitative analysis.” United
States v. Lauder, 409 F.3d 1254, 1264 n.5 (10th Cir. 2005).
Analysis under Rule 702(c) “involves two related inquires: (I) what methodology
did the witness use to reach the opinion; and (ii) is that methodology generally deemed
‘reliable’ in the field in which the expert works.” Crabbe, 556 F.Supp.2d at 1222. “[T]he
articulation of a methodology usually can be made without reference to the specific
opinion or to any of the specific facts in the case; it is simply an explanation of the
process the witness used.” Id. As for reliability, the question is “whether the reasoning
or methodology underlying the testimony is scientifically valid.” Daubert, 113 S. Ct. at

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2796. In assessing the reliability of the proffered methodology, the court should
consider
whether the theory or technique in question can be (and has
been) tested, whether it has been subjected to peer review
and publication, its known or potential error rate and the
existence and maintenance of standards controlling its
operation, and whether it has attracted widespread
acceptance within a relevant scientific community.
Id. at 2790. These factors, however, “are neither exclusive nor dispositive.” Crabbe,
556 F.Supp.2d at 1223.
Finally, Rule 702(d) requires that the expert reliably apply “the principles and
methods to the facts of the case.” FED. R. EVID. 702(d). Factors that inform this
analysis include, but are not limited to,
(I) whether the expert employed the same degree of
intellectual rigor in formulating the opinion as he or she
would be expected to employ in his or her own professional
life; (ii) whether the expert has unjustifiably extrapolated from
an accepted premise to an unfounded conclusion (i.e.,
whether there is too great an analytical gap between the
data and the opinion proffered); and (iii) whether the expert
adequately accounted for obvious alternative explanations.
Crabbe, 556 F.Supp.2d at 1224. The requirement that the witness reliably apply his
methods to the facts “is not an invitation to a court to assess the worth of the opinion
itself. The court’s focus is simply upon whether the witness followed the dictates of the
methodology in considering the facts and data.” Id. at 1223.
Guided by these principles, the trial court has broad discretion in determining
whether expert testimony is sufficiently reliable and relevant to be admissible. Truck
Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235,

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1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain
that the expert . . . employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Goebel v. Denver and Rio
Grand Western Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire,
119 S.Ct. at 1176). “Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 113 S.Ct. at 2798.
III. ANALYSIS
This is an action for legal malpractice. The case arises from an underlying patent
suit against various entities which plaintiff alleged were infringing his patent. The
protracted history of this matter is well-known to the parties and need not be repeated at
length here. The case ultimately was tried to a jury before then-Judge (now Chief
Judge) Krieger in February and March of 2006. The jury returned a verdict in favor of
plaintiff for $1.85 million in compensatory damages. Together with treble damages
(based on the jury’s advisory finding of a willful violation of plaintiff’s patent rights) and
attorney fees, the full amount of recovery ultimately could have totaled more than $10
million.
Still pending at the time the jury returned its verdict, however, was the patent
defendants’ Rule 50 motion for judgment as a matter of law, which Judge Krieger had
taken under advisement at the close of the trial. In early November 2006, after the Rule
50 motion (and other post-trial motions) had been briefed and argued, the patent
defendants offered plaintiff two million dollars to settle the case. He dismissed his trial

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counsel and hired defendant Duane Morris, LLP, and attorneys John Herman and Allen
Greenberg of the firm to represent him for purposes of settlement negotiations.
In early December, defendants submitted a counterproposal to the patent
defendants, who then increased their settlement offer to $2.5 million. In connection with
that offer, the patent defendants requested plaintiff agree to a 30-day stay of the
proceedings in order to facilitate settlement. Defendants, on behalf of plaintiff, rejected
the request to seek a stay from the district court. After further negotiations, the parties
agreed to settle the case for $4 million on December 22, 2006. However, before the
agreement could be finalized, the parties received notice of Judge Krieger’s December
20, 2006, order granting the patent defendants’ Rule 50 motion.2 The patent
defendants immediately withdrew their $4 million settlement offer, but the parties
subsequently renegotiated and settled the case for $2.55 million. Defendants were paid
$250,000 from the settlement proceeds for their work.3
In this lawsuit, plaintiff claims defendants committed legal malpractice. As
required by Colorado law, see §13-20-601, C.R.S.; White v. Jungbauer, 128 P.3d 263,
264 (Colo. App. 2005), plaintiff has proffered the testimony of a purported expert
witness to establish the applicable standard of care. Plaintiff’s expert, William A. Trine,
is a highly experienced Colorado civil trial attorney. Among his varied and extensive
trial experience, however, he admittedly has never litigated a patent suit, nor does he
claim to be an expert in patent or intellectual property law. Defendants maintain that Mr.
2

Receipt of the order was delayed due to a blizzard which closed the courthouse on December

21, 2006.
3

This is the only payment plaintiff ever made to defendants. Defendants subsequently
represented plaintiff when his trial counsel sued him for unpaid attorney fees. Defendants aver that they
ultimately incurred some $232,000 in fees and costs as a result of that representation.

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Trine therefore is unqualified to opine as to the standard of care relevant to their
representation of plaintiff in the patent suit. They further claim that no expert opinion is
appropriate as to the question whether Judge Krieger would have granted a stay had
one been requested. Finally, they assert that Mr. Trine’s opinions regarding the
reasonableness of the fee charged lack foundation. I examine these opinions in turn.
Defendants first argue that Mr. Trine is unqualified to offer an opinion regarding
the standard of care because he has never litigated a patent case and therefore cannot
adequately evaluate the objective likelihood that Judge Krieger would have granted the
patent defendants’ Rule 50 motion. Their argument is based on a faulty premise,
however. The opinion Mr. Trine offers is not directed at the merit vel non of the motion
for judgment as a matter of law, but instead questions the reasonableness of
defendants’ decision – knowing that such a motion was pending – to reject the patent
defendants’ request for a brief stay of the proceedings to facilitate settlement
negotiations.4 The focus of this relevant inquiry is not on the intricacies of patent law,
but on the more general considerations that would be expected to inform a reasonable
attorney’s decisions in settlement negotiations in civil litigation more broadly.
Defendants have not shown that there is anything unique about patent cases in this
more relevant respect, and, to the extent there may be, such matters clearly can be
explored adequately on cross examination. They do not counsel against striking Mr.
Trine’s opinions wholesale.
Next, defendants suggest that Mr. Trine should not be permitted to opine as to
4

Indeed, defendants themselves argued in support of their motion for partial summary judgment
that this was the seminal issue in the case. (See Order Overruling Objections to and Adopting
Recommendation of United States Magistrate Judge at 3-4 [#84], filed May 28, 2014.)

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whether a reasonable jurist, such as Judge Krieger, would have granted a stay had one
been requested because that issue is one of law for the court to determine. As I noted
in my order denying defendants’ motion for partial summary judgment, although the
issue is one for the court, it is a factual, not a legal, determination. (See Order
Overruling Objections to and Adopting Recommendation of United States
Magistrate Judge at 4 & n.2 [#84], filed May 28, 2014.) This argument therefore fails in
its premise as well.
Finally, defendants maintain that Mr. Trine’s opinions regarding the nature and
reasonableness of the fee charged to plaintiff lacks foundation. Their arguments
amount to nothing more than a disagreement as to the import of the facts, rather than a
true challenge to the quantum of facts, on which the opinion is based. Again, such
matters go to the weight, not the admissibility, of the expert’s opinion and do not warrant
striking Mr. Trine’s opinion.
THEREFORE, IT IS ORDERED that Defendants’ Motion To Exclude
Plaintiff’s Expert William A. Trine Under Fed. R. Evid. 702 [#63], filed April 25, 2014,
is DENIED.
Dated May 29, 2014, at Denver, Colorado.
BY THE COURT:

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