Greatbatch Ltd. v. AVX Corporation et al
MEMORANDUM ORDER re 936 MOTION to Exclude filed by AVX Corporation, AVX Filters Corporation and 934 MOTION to Exclude filed by Greatbatch Ltd. are GRANTED in part and DENIED in part. Signed by Judge Leonard P. Stark on 7/20/17. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE UISTRICT OF DELAWARE
C.A. No. 13-723-LPS
A VX CORPORATION and
A VX FILTERS CORPORATION,
At Wilmington this 20th day of July, 2017:
Pending before the Court are (1) Plaintiff Greatbatch Ltd.' s ("Greatbatch" or "Plaintiff')
motion to exclude opinions of Defendants AVX Corporation and AVX Filters Corporation's
("AVX" or·"Defendants") expert witnesses Craig D. Hillman, Ph.D. and William B. Johnson,
Ph.D. (D.I. 934); and (2) AVX's motion to exclude expert testimony of Professor Steven M.
Pilgrim, Ph.D. (D.I. 936). Having reviewed the parties' motions and associated briefing (D.I.
935, 939, 952, 954, 964, 966),
IT IS HEREBY ORDERED that:
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the
Supreme Court explained that Federal Rule of Evidence 702 creates "a gatekeeping role for the
[trial] judge" in ~rder to "ensur[e] that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Rule 702(a) requires that expert testimony "help the trier of
fact to understand the evidence or to determine a fact in issue." Expert testimony is admissible
only if "the testimony is based on sufficient facts or data," "the testimony is the product of
reliable principles and methods," and "the expert has reliably applied the principles and methods
to the facts of the case." Fed. R. Evid. 702(b)-(d). There are three distinct requirements for
proper expert testimony: (1) the expert must be qualified; (2) the opinion must be reliable; and
(3) the opinion must relate to the facts. See Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.
Greatbatch' s motion to exclude opinions of AVX expert witnesses Drs. Hillman
and Johnson (D.I. 934) is GRANTED IN PART and DENIED IN PART.
motion with respect to Dr. Hillman is DENIED. Greatbatch seeks to
exclude portions of Dr. Hillman's testimony on two grounds: (1) his theory regarding sample
smearing is (a) not generally accepted in the scientific community and (b) unreliable; and (2) his
testimony regarding conductivity of the reaction zone is not sufficiently certain to be admissible.
Regarding the first ground, the parties agree that industry standard
procedures were used in cross-sectioning the Ingenio FFT samples and that such procedures can
induce inadvertent damage to the samples, including the smearing of soft metals by hard metals.
Greatbatch argues, however, that Dr. Hillman's theory that such smearing moves materials "over
distances from ten microns to distances over hundreds of microns" (D.I. 935 at 5) is not
supported by the literature, which "does not reveal any smearing of metals beyond a distance of
one micron." (Id.) In addition, Greatbatch argues that Dr. Hillman's theory is unreliable because
it does not account for certain observed data, is speculative, and "contradicts basic chemical
principles." (Id. at 6) These contentions are proper grounds to rebut or cross-examine Dr.
Hillman, but are not sufficient bases to exclude his testimony. Dr. Hillman's opinion is based on
his own extensive experience and analysis of the A VX FFTs as well as the generally-accepted
"pitfalls" associated with cross-sectioning devices. (D.I. 952 at 2) Greatbatch fails to identify
any evidence that Dr. Hillman's theory is implausible or unaccepted.
Regarding the second ground, Greatbatch asserts that because Dr. Hillman
opined that he could not "reliably make any statements regarding any kind of reaction product"
and was unable to opine that the reaction product was not conductive - stating only that it was
possible that conductivity would be prevented- Dr. Hillman's opinion regarding the conductivity
of the reaction zone was inconclusive and not sufficiently certain to be admissible. (D.I. 935 at
8) The Court, however, agrees with AVX that Dr. Hillman's testimony is not inconclusive, and
instead fairly accounts for a lack of information. Greatbatch' s criticisms are valid bases for
attacking Dr. Hillman's analysis, but not to exclude it.
Greatbatch's motion with respect to Dr. Johnson is GRANTED. Greatbatch
moves to exclude Dr. Johnson's opinion that "no reasonable metallurgist" would rely on certain
data. The Court agrees that this opinion improperly usurps the Court's gatekeeping funGtion of determining reasonable reliance. While Dr. Johnson will be permitted to attack the reliability of
Greatbatch's experts' data, Dr. Johnson's testimony that "no reasonable metallurgist" would do
as Greatbatch's expert has done is an improper legal conclusion (and one the Court has not made
in this case).
AVX's motion to exclude expert testimony of Professor Pilgrim, Ph.D. (D.I. 936)
is GRANTED IN PART and DENIED IN PART. A VX seeks to exclude three portions of
Prof. Pilgrim's testimony: (1) opinions on the state of mind or intent of AVX and its employees;
(2) opinions that all AVX Ingenio FFTs (including those without a primer) infringe the asserted
claims of the '779 patent; and (3) opinions relying on images from EAG labs.
A VX' s motion is GRANTED to the extent it seeks to strike opinions
expressed by Prof. Pilgrim as to the state of mind and intent of AVX and/or its employees. (D.I.
939 at 4) Such statements are impr~per legal conclusions based on unscientific interpretation..
Thus, at minimum, the eleven paragraphs expressly identified by A VX (eight from its original
brief (see D.I. 939 at 4-6) plus three noted in its reply (see D.I. 966 at 1 n.l)) are STRICKEN.
Prof. 'Pilgrim will not be permitted to "present any opinion or testimony that refers to or
implicates AVX's state of mind or otherwise constitutes legal conclusions." (D.I. 966 at 1) To
the extent the parties have disagreements as to specific application of this order to other .
paragraphs or portions of Prof. Pilgrim's report(s), including his Amended Supplemental Report,
they shall meet and confer and, if unable to resolve those disagreements, present any remaining
disagreements to the Court at trial.
AVX's motion is GRANTED with respect to Prof. Pilgrim's opinion that
pre-primer parts infringe the '779 patent. Greatbatch bears the burden to prove infringement.
Greatbatch knew and/or was advised in 2015 that earlier Ingenio FFTs were made without primer
and later others were made with primer. (See D.I. 966 at 5) Prof. Pilgrim did not review or
analyze non-primer Ingenio FFTs and simply asserted that both versions infringe the '779 patent.
(D.I. 939 at 7) He offers no analysis to support this opinion and, to the contrary, acknowledged
the difference the primer could have. (See D.I. 966 at 6) Prof. Pilgrim has no evidence from
· which to conclude that the primer parts he analyzed are representative of the pre-primer parts he
also asserts infringe.
A VX' s motion is DENIED with respect to Prof. Pilgrim's reliance on
certain images. AVX may cross-examine Prof. Pilgrim with respect to the adjustment of these
images, but AVX has not identified a persuasive basis for excluding this portion of Prof.
Pilgrim's analysis or opinions.
. ~ONARD P. STARK
UNITE:6 STATES DISTRICT JUDGE
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