Siemens Industry, Inc. v. Westinghouse Air Brake Technologies Corporation et al
MEMORANDUM ORDER re the following motions are DENIED -- 396 MOTION for Reconsideration; 398 MOTION for Leave to File Revised Expert Report of Its Damages Expert; 305 MOTION to Exclude Portions of Mr. Christopher Martinez. Signed by Judge Leonard P. Stark on 1/2/19. (ntl)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SIEMENS MOBILITY INC.
C.A. No. 16-284-LPS
WESTINGHOUSE AIR BRAKE
(d/b/a W ABTEC CORPORATION) and
W ABTEC RAILWAY ELECTRONICS, INC.,
At Wilmington this 2nd day of January, 2019:
Pending before the Court are Siemens' Daubert Motion to Exclude Portions of Mr.
Christopher Martinez (D.I. 305), Motion for Reconsideration (D.I. 396), and Motion for Leave to
Serve a Revised Expert Report oflts Damages Expert (D.I. 398). For the following reasons, IT
IS HEREBY ORDERED that Siemens' motions are DENIED.
MOTION FOR RECONSIDERATION
Pursuant to Local Rule 7.1.5 , a motion for reconsideration should be granted only
"sparingly." The decision to grant such a motion lies squarely within the discretion of the district
court. See Dentsply Int '!, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385 , 419 (D. Del. 1999);
Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990). These types of motions
are granted only if the Court has patently misunderstood a party, made a decision outside the
adversarial issues presented by the parties, or made an error not of reasoning but of apprehension.
See Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293, 295 (D. Del. 1998); Brambles, 735 F.
Supp. at 1241. A motion for reconsideration may be granted only if the movant can show at least
one of the following: (i) there has been an intervening change in controlling law; (ii) the
availability of new evidence not available when the court made its decision; or (iii) there is a
need to correct a clear error of law or fact to prevent manifest injustice. See Max 's Seafood Cafe
by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). However, in no instance
should reconsideration be granted if it would not result in amendment of an order. See Schering
Corp., 25 F. Supp. 2d at 295.
The Court is denying Siemens' motion for reconsideration for the reasons stated at the
November 26 hearing (see D.I. 395 at 5-6) and in Defendants Westinghouse Air Brake
Technologies Corporation (d/b/a Wabtec Corporation) and Wabtec Railway Electronics, Inc. ' s
("Defendants," "Westinghouse," or "Wabtec") opposition brief. (See D.I. 412)
Many of the arguments Siemens makes for the relief it seeks mischaracterize the bases the
Court gave for the decision Siemens is asking the Court to reconsider. The Court did not
"convert a Daubert challenge into a merits determination" (D.I. 396 at 1) or "hold Mr. Carter
to an incorrect 'heavy burden' standard" (id.). Instead, the Court expressly stated: "The Court
finds that his application of Panduit is not one that survives a Daubert challenge. . . . What I
have to answer and have answered is that Carter's analysis does not provide a sound basis on
which a jury could and would award lost profits .. . ." (D.I. 395 at 6) The Court's reference to a
"heavy burden" reflects the reality that in some cases, possibly including here, lost profits
damages are not available. See also generally Wesch/er v. Macke Int '! Trade, Inc., 486 F.3d
1286, 1293 (Fed. Cir. 2007) ("[I]f the patentee is not selling a product, by definition there can be
no lost profits, [unless] the patentee has the ability to manufacture and market a product, but for
some legitimate reason does not. . . . [I]n these situations, though, the burden on a patentee who
has not begun to manufacture the patented product is commensurately heavy."). The Court did
not weigh the evidence.
The Court continues to find that Mr. Carter' s failure to account for the alternative actions
Wabtec would foreseeably have undertaken had it not infringed is a fatal flaw in his application
of Panduit. See Grain Processing Corp. v. Am. Maize-Prods. Co. , 185 F.3d 1341 , 1350-51 (Fed.
Cir. 1999) (" [A] fair and accurate reconstruction of the ' but for ' market also must take into
account, where relevant, alternative actions the infringer foreseeably would have undertaken had
he not infringed."). As the Federal Circuit has explained, it is "hardly likely" that a company like
Westinghouse would "surrender its complete market share when faced with a patent, if it can
compete in some other lawful manner." Id. at 1351. Mr. Carter' s speculation that Siemens
would have developed a hybrid of Train Sentinel and TrainGuard and that this hybrid product
would have replaced all of Wabtec' s sales is unreliable in light of Mr. Carter' s failure to consider
Westinghouse's alternatives (other than exiting the market) in the but-for market. (See D.I. 412
at 7) ("Carter assumes that Defendants wold leave the PTC market altogether, abandoning their
customer relationships and the extensive train control investment they made before the issuance
of the OBU Patents. Carter' s assumption that Defendants (and every other PTC company in the
market) would do nothing and allow Invensys and Siemens to usurp the U .S. market infects his
entire lost profits analysis for the OBU and BOS Patents, rendering that analysis wholly
unreliable.") To perform its gatekeeping function, the Court must exclude this unreliably flawed
The Court is not persuaded that its decision, either on the earlier motion or today, will
result in manifest injustice.
MOTION TO SUPPLEMENT
Having considered the "Pennypaclc' factors, the Court is also denying Siemens' motion
for leave to serve a supplemental expert report of Mr. Carter. While the revised report narrows
the temporal period of lost profits, Mr. Carter presents completely new opinions, including, inter
alia, a new "but for" world starting in 2013 and a different product (TrainGuard rather than the
previously disclosed hybrid product). Siemens had every opportunity to present this as an
alternative theory earlier in the case, including in one or more of Mr. Carter' s earlier reports.
Siemens does not explain why it should be permitted another opportunity to present what, in
fairness, is a new opinion 1 when Siemens waited until after the Court excluded the lost profits
theory that Siemens chose to rely on in full knowledge of Wabtec' s challenges to it. While the
Court recognizes that the evidence is important and that Siemens did not act in bad faith (instead,
it seems simply to have made a strategic decision), it would be unfairly prejudicial to require
Westinghouse to digest, rebut, and depose these new opinions in the remaining 12 days before a
trial which already involves various theories of infringement of 11 patents, willfulness,
invalidity, and reasonable royalty damages. Bifurcating or postponing trial would not cure this
prejudice (particularly as Westinghouse opposes such measures) and would disrupt the orderly
and efficient trial of this case.
This is not a situation where updated numbers are plugged into a previously-disclosed
and unchanged formula.
In Daubert v. Merrell Dow Pharm. , 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
order to "ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to
the task at hand." The rule requires that expert testimony "help the trier of fact to understand the
evidence or to determine a fact in issue." Fed. R. Evid. 702(a). There are three distinct
requirements for admissible expert testimony: (1) the expert must be qualified; (2) the opinion
must be reliable; and (3) the expert's opinion must relate to the facts. See generally Elcock v.
Kmart Corp., 233 F.3d 734, 741-46 (3d Cir. 2000). Hence, expert testimony is admissible 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). Rule 702 embodies a "liberal policy of admissibility." Pineda
v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008). Motions to exclude evidence are
committed to the Court' s discretion. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d
Having denied Siemens' motion for reconsideration, the Court also denies the two
remaining issues in Siemens' Daubert motion. (See D.I. 393 at 1-2) First, the Court finds that
Siemens' arguments regarding whether non-infringing alternatives and design-arounds would be
available to Westinghouse and acceptable to its customers "go to the weight of the expert's
testimony, not to the admissibility." MobileMedia Ideas, LLC v. Apple Inc., 209 F. Supp. 3d
756, 766 (D. Del. 2016) (denying motion to exclude expert opinion on commercial acceptability
of non-infringing alternatives). Even though Mr. Martinez did not speak to any of
Westinghouse's customers, he relied on industry sources and extensive technical analysis by
Westinghouse ' s technical experts. Second, the Court finds that Mr. Martinez's reliance on Dr.
Kaufman's analysis regarding the benefits of the patented features is appropriate. Siemens'
concerns with Dr. Kaufman' s credibility raise issues of fact for the jury.
LE LEONARD . STARK
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?