freal Foods LLC et al v. Hamilton Beach Brands, Inc. et al

Filing 240

MEMORANDUM ORDER granting in part and denying in part 174 MOTION to Preclude Motion to Exclude Testimony of Dr. Michael P. Akemann and Daniel Maynes, Ph.D. Signed by Judge Colm F. Connolly on 4/11/2019. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
F'REAL FOODS, LLC and
RICH PRODUCTS
CORPORATION,
Plaintiffs,

v.

Civil Action No. 16-41-CFC

HAMILTON BEACH
BRANDS, INC. and HERSHEY :
CREAMERY COMPANY,
Defendants.:

MEMORANDUM ORDER

Defendants have filed a motion to exclude certain testimony of Plaintiffs'
damages expert, Dr. Michael P. Akemann, and infringement expert, Dr. Daniel
Maynes (D.I. 174). For the following reasons, I will deny in part and grant in part
the motion.
1. Defendants argue that "Dr. Akemann's lost profits opinion is based on
assumptions that are purely speculative and contrary to record evidence" and that
his "reasonable royalty opinion is unreliable and must be excluded because he fails
to properly apportion value between the patented and unpatented features of the
accused products." D.I. 175 at 2. Defendants do not challenge Dr. Akemann's
knowledge, training, expertise, or even the facts underlying his opinions; they

object instead to his methodology and assumptions and also to the particular facts
in the record on which he relied in justifying his opinions. I find that Defendants'
objections go to the weight, not the admissibility of Dr. Akemann's opinions.
Defendants are free to challenge those opinions on cross-examination of Dr.
Akemann at trial. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596
(1993).
2. Defendants seek to exclude Dr. Maynes' testimony to the extent it
concerns the subject matters discussed in paragraphs 55-56, 60--65, 75-78, 80--81,
83, and 115-19 of his opening expert report, and paragraphs 58-61, 69, 70-73, and
184 of his rebuttal report. D.I. 175 at 24-26. As expert witnesses are not
permitted to testify regarding "intent, motive, or state of mind, or evidence by
. which such state of mind may be inferred[,]" Oxford Gene Tech., Ltd. v. Mergen

Ltd., 345 F. Supp. 2d 431,443 (D. Del. 2004), I will preclude Dr. Maynes from
testifying about the subject matters discussed in paragraphs 115-19 of his opening
report and paragraphs 70-73 and 184 of his rebuttal report. As Dr. Maynes is
proffered as an expert on infringement and validity, I will preclude him from
testifying under Federal Rules of Evidence 702 and 403 about the subject matters
discussed in paragraphs 55-56, 60--65, 75-78, 80--81, and 83 of his opening report
and paragraphs 58-61, 69, and 70-73 of his rebuttal report. The matters discussed
in those paragraphs have little if any probative value with respect to the

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infringement or validity of the #662 patent, and Dr. Maynes never ties these
matters to the technical analysis he offers and for which he has specialized
knowledge. To the extent these paragraphs recite, as Plaintiffs argue, "certain facts
that are not in dispute," D.I. 196 at 23, I find that having those facts introduced at
trial through the testimony of Dr. Maynes should be excluded under Rule 403, as
the testimony would waste time and needlessly present cumulative evidence and
would unfairly prejudice the defense. Those facts should be presented through fact
witnesses and/or documents.

WHEREFORE, on this Eleventh day of April in 2019, IT IS HEREBY
ORDERED that "Defendants' Motion to Exclude Testimony of Dr. Michael P.
Akemann and Daniel Maynes, Ph.D." (D.I. 174) is GRANTED IN PART AND

DENIED IN PART:
1. Defendants' motion is DENIED with respect to the testimony of Dr.
Michael P. Akemann.
2. Defendants' motion is GRANTED insofar as it seeks to preclude Dr.
Daniel Maynes from testifying about the subject matters discussed in paragraphs
55-56, 60-65, 75-78, 80-81, 83, and 115-19 of his opening expert report and
paragraphs 58-61, 69, 70-73, and 184 of his rebuttal report.

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IT IS SO ORDERED.

CONNOLLY, UNTTEDATES DISTRICT JUDGE

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