TQ Delta LLC v. Pace Americas Inc.
MEMORANDUM OPINION regarding Motion to Exclude the Expert Testimony of Dr. Madisetti for Family 4 (D.I. 1466 ). Signed by Judge Richard G. Andrews on 7/14/2021. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TQ DELTA, LLC,
~rian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews, Paul
W. McAndrews, RajendraA. Chiplunkar,Ashley M. Ratycz, MCANDREWS, HELD &
MALLOY, LTD., Chicago, IL,
Attorneys for Plaintiff.
Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Brett Schuman,
Rachel M. Walsh, GOODWIN PROCTER LLP, San Francisco, CA; Douglas J. Kline,
GOODWIN PROCTER LLP, Boston, MA; Andrew S. Ong, GOODWIN PROCTER LLP,
Redwood City, CA; Cindy Chang, GOODWIN PROCTER LLP, New York, NY,
Attorneys for Defendant.
July 14, 2021
/s/ Richard G. Andrews
ANDREWS, U.S. DISTRICT JUDGE:
Before the Court is Defendant's motion to exclude the expert testimony of Dr. Madisetti
for Family 4. (D.I. 1466). I have considered the parties' briefing. (D.I. 1467, 1516, 1527).
PlaintiffTQ Delta filed suit against Defendant 2Wire alleging infringement oftwenty-
f<~ur patents that span six different patent families. (D.L 6). The Court divided the case into
separate trials based on the patent families. (D.I. 280). This motion concerns the Family 4
P:atents, U.S. Patent Nos. 7,292,627 ("the '627 Patent"), 8,090,008 ("the '008 Patent"), and
8,073,041 ("the '041 Patent"). Plaintiff alleges infringement of Claim 26 of the '627 Patent,
c;Iaim 14 of the '008 Patent, and Claim 14 of the '041 Patent. The patents-at-issue are directed to
a; system and method for scrambling the phase characteristics of carrier signals.
Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and
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. The trial court has the ''task of ensuring that an expert's testimony
both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow
Pharms. Inc., 509 U.S. 579, 597 (1993).
The Third Circuit has explained:
Rule 702 embodies a trilogy of restrictions on expert testimony:
qualification, reliability and fit.
Qualification refers to the
requirement that the witness possess specialized expertise. We have
interpreted this requirement liberally, holding that "a broad range of
knowledge, skills, and training qualify an expert." Secondly, the
testimony must be reliable; it "must be based on the 'methods and
procedures of science' rather than on 'subjective belief or
unsupported speculation'; the expert must have 'good grounds' for
his o[r] her belief. In sum, Daubert holds that an inquiry into the
reliability of scientific evidence under Rule 702 requires a
determination as to its scientific validity." Finally, Rule 702
requires that the expert testimony must fit the issues in the case. In
other words, the expert's testimony must be relevant for the
purposes of the case and must assist the trier of fact. The Supreme
Court explained in Daubert that "Rule 702's 'helpfulness' standard
requires a valid scientific connection to the pertinent inquiry as a
precondition to admissibility."
By means of a so-called "Daubert hearing," the district court acts as
a gatekeeper, preventing opinion testimony that does not meet the
requirements of qualification, reliability and fit from reaching the
Schneider ex rel. Estate ofSchneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (footnote
and internal citations omitted). 1 At base, "the question of whether the expert is credible or the
opinion is correct is generally a question for the fact finder, not the court." Summit 6, LLC v.
Samsung Elecs. Co., Ltd, 802 F.3d 1283, 1296 (Fed. Cir. 2015). Indeed, "[v]igorous 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,
509 U.S. at 596.
Defendant moves to exclude the testimony of Plaintiff's expert Dr. Vijay Madisetti for
Family 4. Defendant takes issue with Dr. Madisetti's testimony on two grounds.
:The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent
amendments to it were not intended to make any substantive change.
First, Defendant argues that Dr. Madisetti's opinions should be excluded because his
"~eliberate evasiveness" at deposition shows that his opinions are unreliable. (D.I. 1467 at 11).
Defendant states "Dr. Madisetti consciously evaded 2Wire's legitimate and targeted questions
and otherwise obfuscated his testimony." (Id. at 3). Defendant maintains that Dr. Madisetti
"~elayed and disrupted the testimonial record," as he "gave non-responsive testimony to 2Wire's
questioning" and "continuously misstated and mischaracterized the targeted and simple
q:uestions." (Id. at 6). Defendant contends that Dr. Madisetti's "intentional obfuscation" at his
~eposition demonstrates his "refusal. ..to submit to a proper cross examination at deposition
'i7hich would unfairly prejudice 2Wire at trial" if Dr. Madisetti testifies. (Id. at 11-12).
Defendant asserts that the Pennypack factors weigh in favor of exclusion of Dr.
¥adisetti's opinions. (Id. at 12). It contends: (1) it is "severely prejudiced" by Dr. Madisetti's
conduct at his deposition; (2) there is no way to cure this prejudice with expert discovery closed
atJ.d trial approaching; (3) Dr. Madisetti's testimony would disrupt the order and efficiency of
trial; (4) Plaintiffs actions demonstrate bad faith; and (5) Dr. Madisetti's opinions are unhelpful
to the trier of fact. (Id. at 15).
Second, Defendant argues that Dr. Madisetti's opinions should be excluded as not helpful
to the trier of fact because Dr. Madisetti "refused to provide answers to relatively simple
questions regarding the basis of his opinions and the materials cited in his reports." (Id. at 151~6). Defendant concludes, "2Wire and the Court are left with little guidance as to what Dr.
Madisetti's opinions are and what his testimony at trial will be." (Id. at 17)
Plaintiff counters that Dr. Madisetti's testimony was not evasive or incomplete, and that
J?efendant mischaracterizes the factual record. (D.I. 1516 at 3-8). Plaintiff maintains that it is
Defendant's fault that it was unable to elicit certain information from Dr. Madisetti during his
deposition as Defendant's counsel asked· "overly generalized, vague, or simply illogical
qµestions." (Id at 4). Plaintiff next asserts that there is no legal basis to exclude Dr. Madisetti's
opinions under Daubert, as Defendant "does not contend that Dr. Madisetti is unqualified" nor
does Defendant demonstrate that Dr. Madisetti's opinions are not based on reliable methods,
sufficient data, and the facts of the case. (Id at 8-9).
Plaintiff also argues that there is no legal basis to exclude Dr. Madisetti's opinions under
Pennypack as Dr. Madisetti's opinions were disclosed in the manner required by Rule 26 and the
Court's scheduling order. (Id at 10). Plaintiff also contends that even if Dr. Madisetti's opinions
were untimely disclosures, the Pennypack factors do not weigh in favor of exclusion. (Id at 1112). Plaintiff argues: (1) Defendant is not prejudiced; (2) ifthere was any prejudice, it could be
c~ed by "effective cross examination;" (3) any testimony given by Dr. Madisetti at trial would
be elicited by the parties; (4) Plaintiff's counsel and Dr. Madisetti did not act in bad faith; and (5)
])r. Madisetti's opinions are of great importance to the case. (Id at 11-12).
I agree with Plaintiff that there are no grounds to categorically exclude Dr. Madisetti's
opinion and testimony.
Defendant's first argument is that Dr. Madisetti's opinions should be excluded under the
Pennypack factors. Under Federal Rule of Civil Procedure 37(c)(1 ), "[i]f a party fails to provide
information... as required by Rule 26(a) or (e), the party is not allowed to use that information..
. to supply evidence on a motion, at a hearing, or at a trial unless the failure was substantially
justified or is harmless." Fed. R. Civ. P. 37(c)(l). Expert reports are required disclosures under
Rule 26(a). See Fed. R. Civ. P. 26(a)(2). Courts in the Third Circuit consider the Pennypack
factors to determine whether a failure to disclose is harmless. See Konstantopoulous v. Westvaco
Corp., 112 F.3d 710, 719 (3d Cir. 1997) (citing Meyers v. Pennypack Woods Home Ownership
Ass'n, 559 F.2d 894, 904-905 (3d Cir. 1977)).
Here, Defendant has not shown that Plaintiff failed to provide information regarding Dr.
Madisetti's opinions. Therefore, the Pennypack factors are not applicable. See id.
Defendant's arguments, instead, focus on the unreliability and unhelpfulness of Dr.
Madisetti's opinions based on his alleged conduct at his deposition, that he: "consciously
evaded" questions; "gave non-responsive testimony;" and "continuously misstated and
mischaracterized" the questions. (D.I. 1467 at 3, 6). Defendant does not call into question the
scientific validity of Dr. Madisetti's opinions nor does it argue that the methods, the information
o~ which the opinions are based, or the connections to the facts of the case are unreliable.
District courts are gatekeepers for the reliability of expert opinions, Schneider ex rel.
Estate ofSchneider, 320 F.3d at 405, but the "question of whether the expert is credible or the
o~inion is correct is generally a question for the fact finder, not the court." Summit 6, LLC, 802
FJd at 1296. Defendant will be able to address Dr. Madisetti's credibility through cross
e~amination at trial. Daubert, 509 U.S. at 596.
As Defendant has not shown that Dr. Madisetti's opinions are scientifically invalid and as
Defendant will be able to address its concerns about Dr. Madisetti's credibility through cross
examination, Defendant's motion to exclude is denied.
For the foregoing reasons, Defendant's motion to exclude the expert testimony of Dr.
Madisetti for Family 4 is denied. A separate order will be entered.
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