Taser International Inc. v. Karbon Arms LLC

Filing 173

MEMORANDUM ORDER Granting 123 MOTION to Exclude the Testimony of Val DiEuliis Regarding Electrophysiology, filed by Taser International Inc.. Signed by Judge Richard G. Andrews on 12/18/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TASER International, Inc.,

Plaintiff,

v.

Civil Action No. 11-426-RGA

Karbon Arms, LLC,

Defendant.

MEMORANDUM ORDER

Presently before the Court is PlaintiffTASER International, Inc.'s Motion to Exclude the
Testimony ofVal DiEuliis Regarding Electrophysiology (D.I. 123) and related briefing (D.I. 141,
160). Dr. DiEuliis has offered opinions on the following limitations ofU.S. Patent No.
7,800,885: "compliance signals of the group differ in intensity of pain compliance," "compliance
signals of the group differ in intensity of skeletal muscle contraction," and "effective duration."
Because these terms relate to the physiological effects of electricity, a subject which Dr. DiEuliis
has disclaimed any expertise, TASER asks that his testimony on these limitations be excluded
under Fed. R. Evid. 702 and Daubert.
Karbon does not dispute that Dr. DiEuliis is not an expert in electrophysiology. (D.I. 141
at 3). However, Karbon argues that Dr. DiEuliis need not be an expert in electrophysiology for
his testimony to be admissible because he is a person of ordinary skill in the art. (D .I. 141 at 3).
Essentially, Karbon argues that Dr. DiEuliis' testimony does not concern electrophysiology, but
electrical engineering, something about which he is qualified to testify.

Karbon's argument misses the mark. As Dr. DiEuliis has admitted, he is not an expert in
electrophysiology. (D.I. 123 at 3). Therefore, Dr. DiEuliis cannot testify concerning
electrophysiology. While Karbon argues that his testimony only concerns electrical engineering,
TASER has pointed to numerous instances where Dr. DiEuliis attempts to rebut TASER's
electrophysiology expert (D.I. 124 Ex.

Bat~~

480-87), opines on the stimulation of nerves,

muscular response to electricity, and muscle contractions (D.I. 135 Ex.

Tat~~

225-36), and

offers an electrophysiological definition of the term "effective duration" (D.I. 124 Ex.

Bat~~

455-68). This testimony is improper.
Dr. DiEuliis may not testify concerning electrophysiology. He may testify to those things
within his expertise. It is difficult to tell beforehand where that line is drawn, but I expect it will
be clear during trial.
For the reasons discussed above, TASER's motion (D.I. 123) is hereby GRANTED.

Entered this

/8

tL
day of December, 2013.

I