Koninklijke Philips Electronics N.V. et al v. Zoll Medical Corporation

Filing 1014

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER 1) Defendants motion to exclude portions of the testimony of Mr. John C Jarosz (Docket No. 924) is DENIED and2) Defendants motion to exclude in part the testimony of Dr. John P. Freese (Docket No. 926) is DENIED.(Caruso, Stephanie)

United States District Court
District of Massachusetts
)
)
)
)
)
)
)
)
)
)
)
)
)

Koninklijke Philips N.V. and
Philips Electronics North
America Corporation,
Plaintiffs,
v.
Zoll Medical Corporation,
Defendant.

Civil Action No.
10-11041-NMG

MEMORANDUM & ORDER
GORTON, J.
Pursuant to this Court’s scheduling order entered on
December 16, 2016, Zoll Medical Corporation (“defendant”) filed
two Daubert motions to exclude, in part, the testimony of Mr.
John C. Jarosz and Dr. John P. Freese, two expert witnesses
retained by Koninklijke Philips N.V. and Philips Electronics
North America Corporation (collectively, “plaintiffs”) for
trial.
I.

For the following reasons, those motions will be denied.

Defendant’s Daubert Motions
A.

Legal Standard

The admission of expert evidence is governed by Fed. R.
Evid. 702 which codified the Supreme Court’s holding in Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its
progeny. United States v. Diaz, 300 F.3d 66, 73 (1st Cir. 2002).

-1-

Rule 702 charges a district court with determining whether: 1)
“scientific, technical, or other specialized knowledge will
assist the trier of fact,” 2) the expert is qualified “by
knowledge, skill, experience, training, or education” to testify
on that subject, 3) the expert’s proposed testimony is based
upon “sufficient facts or data,” 4) that testimony is the
product of “reliable principles and methods” and 5) the expert
“applies the principles and methods reliably to the facts of the
case.”
The Court must be vigilant in exercising its gatekeeper
role because of the latitude given to expert witnesses to
express their opinions on matters about which they have no
firsthand knowledge and because an expert’s testimony may be
given substantial weight by the jury due to the expert’s status.
See Daubert, 509 U.S. at 595; Kumho Tire Co. v. Carmichael, 526
U.S. 137, 148 (1999).
The Court must nonetheless keep in mind that vigorous
cross-examination, presentation of contrary evidence and careful
instruction on the burden of proof are the traditional and more
appropriate means of attacking shaky but admissible evidence.
Daubert, 509 U.S. at 596.

If an expert’s testimony is within

“the range where experts might reasonably differ,” the jury, not
the trial court, should be the one to decide among the
conflicting views of different experts. Kumho Tire, 526 U.S. at

-2-

153.

When a dispute exists between two experts both of whom use

reliable methods, that dispute “[goes] to the weight, not the
admissibility, of the testimony.” Cummings v. Standard Register
Co., 265 F.3d 56, 65 (1st Cir. 2001).
B.

Application
1.

Mr. John C. Jarosz

Plaintiffs plan to call John C. Jarosz to testify as an
expert witness regarding alleged damages.

Defendant does not

challenge Mr. Jarosz’s qualifications to testify as to damages
generally.

Rather, it challenges the theories of damages he

purportedly uses in developing his report and opinions.
The crux of a Daubert challenge is, however, whether the
proposed expert testimony “fits” the facts and issue of the
case. See 509 U.S. at 591-93.
testimony appears to do so.

Here, Mr. Jarosz’s proposed

For example, that Mr. Jarosz uses

product sales to determine damages for direct infringement of
method claims is not grounds for excluding his testimony. See
Carnegie Mellon Univ. v. Marvell Tech. Grp., 807 F.3d 1283,
1305-06 (Fed. Cir. 2015) (upholding jury verdict based upon
reasonable royalties for sales even though method claims were
infringed).

Although defendant might disagree with that

approach it does not make it unreliable.
That same reasoning applies to defendant’s arguments with
respect to Mr. Jarosz’s consideration of foreign sales, see id.

-3-

at 1306-07, and his calculations of lost profits, see, e.g.,
Cent. Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1579-80
(Fed. Cir. 1983) (affirming award of lost profits when method
claims were infringed).
Furthermore, defendant avers that Mr. Jarosz improperly
relies upon alleged infringement that occurred outside of the
statute of limitations period.

That argument is unpersuasive,

however, because in his deposition, Mr. Jarosz denied using such
data in his damages calculations.
Finally, defendant’s arguments as to the speculative nature
and lack of support for Mr. Jarosz’s testimony amount to
disagreements with his conclusions.

Such disagreements are not,

however, proper grounds for exclusion. See WBIP, LLC v. Kohler
Co., 965 F. Supp. 2d 170, 173 (D. Mass. 2013).

Defendants’

objections to Mr. Jarosz’s testimony “[go] to the weight, not
the admissibility, of the testimony.” Id.
Accordingly, the Court will deny defendant’s motion to
exclude portions of Mr. Jarosz’s expert testimony.
2.

Dr. John P. Freese

Plaintiffs also plan to call Dr. John C. Freese to testify
as an expert witness concerning the use of clinical studies by
purchasers of defibrillators.

Dr. Freese is an experienced

emergency medical clinician with approximately 25 years
experience using and purchasing defibrillators.

-4-

He has been the

sole purchaser of defibrillators approximately ten times and he
has been involved in the process of purchasing such devices
several other times.
First, although defendant contends that Dr. Freese is not
qualified as a marketing and sales expert, he has been retained
to testify as to his extensive experience as clinician and
purchaser of defibrillators.
Second, defendant complains that Dr. Freese’s opinions are
unsupported by reliable scientific methodology.

Those

disagreements with Dr. Freese’s choice of methodology go to the
weight but not the admissibility of his testimony. See Cummings,
265 F.3d at 65.
Because defendant’s concerns with Dr. Freese’s testimony
are more appropriately addressed by vigorous cross-examination
during trial, the Court will deny its motion to exclude portions
of Dr. Freese’s expert testimony.

-5-

ORDER
For the foregoing reasons,
1) Defendant’s motion to exclude portions of the testimony
of Mr. John C Jarosz (Docket No. 924) is DENIED and
2) Defendant’s motion to exclude in part the testimony of
Dr. John P. Freese (Docket No. 926) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated June 19, 2017

-6-