Electrolysis Prevention Solutions LLC v. Daimler Trucks North America LLC
ORDER denying Defendant's 163 Motion to Strike and 186 Motion to Strike. Signed by US Magistrate Judge W. Carleton Metcalf on 11/14/2023. (slm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
DAIMLER TRUCK NORTH
This matter is before the Court on Defendant Daimler Truck North
America LLC’s Motion to Exclude Testimony and Evidence about Resistivity
and Benchtop Testing (the “Motion to Exclude,” Doc. 163) and Defendant
Daimler Truck North America LLC’s Motion to Strike Untimely Expert
Opinions (the “Motion to Strike,” Doc. 186), which have been referred to the
On April 19, 2021, Electrolysis Prevention Solutions, LLC (“EPS”) filed
its Complaint for Patent Infringement, alleging infringement by Daimler
Trucks North America LLC (“DTNA”) of U.S. Patent No. RE47,494 (the “’494
Patent”), which was issued on July 9, 2019. Doc. 1.1 EPS alleged that the
inventions claimed in the ’494 Patent related “generally to improved radiators
with an electrolysis prevention device in the form of a sacrificial anode” and
that DTNA, by “making, using, offering for sale, selling and/or importing
radiators,” had infringed, and continued to infringe, on one or more claims of
the ’494 Patent. Doc. 1 at 4.
On April 12, 2022, the presiding District Judge conducted a hearing to
consider the scope of the claims set out in the ’494 Patent. See Markman v.
Westview Instruments, Inc., 517 U.S. 370, 372 (1996); Cybor Corp. v. FAS
Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). Following that
hearing, the Court issued an Order (the “Markman Order,” Doc. 41). The
Markman Order explained that the ’494 Patent was “directed to a solution for
preventing corrosion in the cooling systems of motor vehicles caused by
electrolysis.” See Doc. 41 at 2. Specifically, although prior art had previously
used “sacrificial anodes” to attract electric current away from other metals, the
’494 Patent proposed to locate the sacrificial anode in a more optimal position.
Id. at 3. The Markman Order further noted that the parties had reached an
agreed construction of the term “sacrificial anode” to mean a “piece of metal
In October of 2022, the docket was amended to reflect that DTNA’s name had been
changed to “Daimler Truck North America LLC.” See Docs. 65, 67, and text-only order
entered on October 26, 2022.
used to protect another piece of metal by preferentially corroding.” Id. at 8.
On July 24, 2023, DTNA was granted leave to amend its invalidity
contentions to assert the “Paccar Mod8” (the “Mod8”) and “Martin Accessory”
as prior art. Doc. 146. The parties were also granted leave to conduct additional
court-enforceable discovery related to the Mod8 and the Martin Accessory
through and including August 18, 2023. Id. Expert discovery was extended
through August 18, 2023. Id.
On August 18, 2023, the following motions were filed:
1. EPS’s Motion to Strike and Exclude Evidence and Expert Opinions
Regarding Alleged Noninfringing Alternatives as Untimely and
Pursuant to Daubert (Doc. 159);
2. DTNA’s Omnibus Notice of Motions and Motions for Summary
Judgment (Doc. 162);
3. DTNA’s Motion to Exclude (Doc. 163);
4. DTNA’s Motion to Exclude Certain Opinions of Mr. Stephen Holzen
(Doc. 164); and
5. EPS’s Motion for Partial Summary Judgment of Validity (Doc. 165).
On September 1, 2023, DTNA filed the Motion to Strike (Doc. 186).
On October 27, 2023, the remaining pretrial deadlines were stayed and
the January 2, 2024 trial setting was canceled, to be reset at a later time. Doc.
The Motion to Exclude (Doc. 163)
A. Legal Standard
Rule 702 of the Federal Rules of Evidence states that:
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
(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.
Admissible expert testimony must be both relevant and reliable. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Where a
party seeks to exclude expert testimony as unreliable, the following factors
may be considered:
(1) whether a theory or technique can be or has been
tested; (2) whether it has been subjected to peer review
and publication; (3) whether a technique has a high
known or potential rate of error and whether there are
standards controlling its operation; and (4) whether
the theory or technique enjoys general acceptance
within a relevant scientific community.
Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 480481 (4th Cir. 2018) (quoting Cooper v. Smith &
Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing
Daubert, 509 U.S. at 592–94)).
The Fourth Circuit has further explained that the “Rule 702 inquiry is ‘a
flexible one,’ and the Daubert factors are ‘helpful, not definitive.’ When
applying these standards, courts ‘should be conscious of two guiding, and
sometimes competing, principles[:] Rule 702 was intended to liberalize the
introduction of relevant expert evidence [and] expert witnesses have the
potential to be both powerful and quite misleading.’” Hickerson, 882 F.3d at
481 (citations omitted). “Furthermore, post-Daubert decisions have shown
‘that the rejection of expert testimony is the exception rather than the rule.’
‘Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof’ remain ‘traditional and appropriate means’
of attacking expert testimony that has been admitted by the trial judge.”
Herrera v. Sherrill, Inc., No. TDC-16-1753, 2023 WL 2245250, at *3 (D. Md.
Feb. 27, 2023) (quoting Fed R. Evid. 702 advisory committee's note to 2000
amendment; Daubert, 509 U.S. at 596).
By this Motion, DTNA seeks to exclude “resistivity” and “benchtop”
testing conducted for EPS by Bradley Krantz, the Vice President of Corrosion
Testing Labs,2 as well as the opinions of Mr. Krantz and Dr. David Rockstraw
A full copy of Mr. Krantz’s report appears in the record. Doc. 165-28.
that are based on that testing.
1. Resistivity Testing
The parties appear to agree that “resistivity” is a property of metal that
represents how resistant or conductive the metal is. See Doc. 169-12 at 6.
Further, DTNA acknowledges that the “B193-20 standard is certainly a
scientifically-acceptable way to reliably measure resistivity.” Doc. 169-12 at
11.3 DTNA argues, though, that Mr. Krantz’s testing departed from that
standard in numerous, significant ways. Doc. 169-12 at 6.
However, the undersigned is not persuaded that Mr. Krantz’s alleged
departures from ASTM B193-20 in this case are so significant that the testing
should be excluded at this time. Cf. Rembrandt Vision Technologies, L.P. v.
Johnson & Johnson Vision Care, Inc., 282 F.R.D. 655, 666 (M.D. Fl. 2012)
(finding an expert’s methodology to be unreliable where the expert’s testing
protocol – which was revised significantly by the expert through cross
examination at trial – “contained serious deviations from the applicable
scientific standards” and where the expert “failure to keep proper records and
documentation of his procedures” rendered the testing “not reproducible….”).
Although DTNA argues that Mr. Krantz failed to follow very specific
A copy of ASTM B193-20 was submitted in conjunction with DTNA’s reply. Doc.
requirements with respect to the testing equipment and the length and shape
of the sample materials, Doc. 169-12 at 11-12, EPS asserts that Mr. Krantz
prepared the tube metal samples “to have the same cross-sectional area as the
tube inserts,” “cleaned the samples using a standard technique,” and used a
“commercially available milli-ohmmeter.” Doc. 175 at 10.4
Further, DTNA contends that these departures resulted in its own
expert, Dr. Wendy Sanders, being unable to reproduce Mr. Krantz’s testing
results. However, EPS argues that Dr. Sanders was able to repeat the
resistivity testing,5 and that, in any event, even if “known” resistivity values
were used (instead of the values determined by Mr. Krantz), those known
values would also support EPS’s experts’ conclusions. See Doc. 175 at 12.6
Mr. Krantz represented during his deposition that he requested longer sample
material but was told obtaining such lengths was not practical. 163-3 (46:14-22); see
also 163-3 (53:24-25 (“The anodes, you only had so much material available. Same
with the tubes”)); Doc. 175 at 19 (EPS’s assertion that because the tube inserts are
substantially smaller than the length required by ASTM B193-20, it would not have
been possible to meet this length requirement). Although DTNA asserts in its reply
brief that “the tubes are several feet long,” it does not address the length of the tube
Dr. Sanders indicated in her report that the “test method” employed was “fairly
repeatable,” although she asserted the test results themselves were “highly
unreliable as to all resistivity values.” Doc. 169-13 at 42 (sealed).
DTNA also asserts that Mr. Krantz failed to follow other “procedural steps,”
included ensuring that the standard temperature requirement was met. With respect
to temperature requirements, Mr. Krantz testified that, although he did not record
the temperature in the room at the time he took his measurements, he believed the
temperature was “approximately 20 degrees C” based on the thermostat’s setting.
DTNA further argues that neither resistance nor resistivity are relevant
to determining a corrosion rate. Doc. 169-12 at 15. DTNA also appears to argue
that even if resistance is relevant to the question of corrosion, EPS’s experts
improperly conflate resistivity with resistance.
It is not clear, though, from the materials provided, that EPS’s experts
assert that resistivity is the only factor relevant to corrosion. See e.g., Doc. 16912 at 15 (quoting Dr. Rockstraw’s deposition in which he stated “[r]esistance
of a particular piece of metal…depends not only on the metal’s inherent
resistivity, but also the ‘geometry and mass of the material.’”) (emphasis
added); Doc. 169-12 at 15 (quoting Michael Nranian, P.E.’s Opening Report in
which Mr. Nranian stated that “lower Volume Resistivity also demonstrated
that the tube inserts protect the tube metal…”) (emphasis added); see also Doc.
169-16 at 5 (244:1-5) (Mr. Nranian’s deposition in which he agreed that
knowing the resistivity of metals would not be enough to conclude that the
accused products contain sacrificial anodes).
Further, DTNA’s expert, Dr. Sanders, referenced the two concepts. See
Doc. 169-13 at 43, ¶ 107 (“Having half of the leads for the tube piece in contact
with the cladding and the other half in contact with the smooth aluminum on
the interior of the tube as Mr. Krantz did significantly increases the measured
resistance and therefore resistivity of the sample.”).
2. Benchtop Testing
Mr. Krantz also conducted what the parties refer to as “benchtop”
testing.7 DTNA contends that this testing was, at most, “inspired” by a
separate testing standard and that, in any event, the testing designed by Mr.
Krantz is irrelevant. Doc. 169-12 at 7.
The undersigned is likewise not persuaded that Mr. Krantz’s benchtop
testing, or the expert opinions based on that testimony, should be excluded.
First, DTNA contends that the benchtop testing “is irrelevant because it
doesn’t even attempt to model what happens in the radiator.” Doc. 169-12 at
17 (citing In re: Pella Corp. Architect and Designer Series Windows Marketing,
Sales Practices and Products Liability Litigation, 214 F.Supp.3d 478, 485
(D.S.C. 2016) (finding an expert’s methodology was not scientifically reliable
where expert conducted test using “unrealistic conditions” and in a manner
that failed to account for the “actual conditions the product experienced” and
was “inconsistent with the general purposes underlying ASTM E2128,” which
was to “simulate the actual conditions under which [water] leakage has been
However, Mr. Krantz testified that the benchtop testing was designed to
explore how the introduction of a sacrificial anode could affect stray current.
EPS explains that the benchtop testing measured the “mass loss rate” and corrosion
rate of the tube and the tube insert. See Doc. 175 at 9.
Doc. 163-3 at 13 (120:13-16).
Second, DTNA concedes that its own testing conducted by Anodico
Corporation (“Anodico”) replicated EPS’s “setup and test.” Doc. 169-12 at 24.
That testing, according to EPS, indicated that “in every Anodico test run that
included tube insert(s), the mass loss and corrosion rates of the tube insert(s)
exceeded those of the tube metal samples (either in the same or different
beaker).” Doc. 175 at 27. DTNA does not challenge this statement but rather
contends that in any test in which two pieces of metal are placed in parallel in
one cell, and one piece of metal is placed separately in another cell, the single
piece of metal will corrode at a higher rate (simply because more current is
flowing through that piece). See Doc. 169-12 at 24-25 (“As one would expect
given the setup of the test, the tube portions in the second beaker corroded less
than the tube portion in the first beaker – because they experienced less
current. Applying the logic used by EPS’s experts, this would mean that the
tube material acted as a sacrificial anode for the tube material – a ridiculous
In sum, although DTNA raises several concerns regarding Mr. Krantz’s
resistivity and benchtop testing, and the opinions derived from that testing,
the undersigned is not persuaded that these concerns should result in the
complete exclusion of the testing, or the expert opinions based thereon, at this
stage of the litigation. See Shire Viropharma Inc. v. CSL Behrin LLC, No. 1710
414, 2021 WL 1227097 at (D. Del. March 31, 2021) (“Importantly, the rule does
not require the party proffering the expert to demonstrate the ‘correctness’ of
the expert's opinion. Rather, the party need only demonstrate ‘by a
preponderance of the evidence’ that the expert's opinion bears adequate indicia
of reliability.”) (internal citations omitted) (quoting In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717, 744 (3d Cir. 1994)).
The Motion to Strike (Doc. 186)
A. Legal Standard
Rule 37(c)(1) states that “[a] party that without substantial justification
fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a
prior response to discovery as required by Rule 26(e)(2), is not, unless such
failure is harmless, permitted to use as evidence at a trial ... any witness or
information not so disclosed.” That is, “Rule 37(c)(1) provides a self-executing
sanction where ‘a party fails to provide information or identify a witness as
required by Rule 26(a) or (e).’” Goodwin v. Cockrell, No. 4:13–CV–199–F, 2015
WL 575861 (E.D.N.C. Feb. 11, 2015) (quoting Fed.R.Civ.P. 37(c)(1)). “The
determination of whether a Rule 26(a) or (e) violation is justified or harmless
is entrusted to the broad discretion of the district court.” Reed v. Washington
Area Metro. Transit Auth., No. 1:14CV65, 2014 WL 2967920, at *2 (E.D.Va.
July 1, 2014).
In making such a determination, district courts in the Fourth Circuit
apply the following factors, as set forth in Southern States Rack and Fixture
Inc. v. Sherwin-Williams Co.,:
(1) the surprise to the party against whom the witness
was to have testified; (2) the ability of the party to cure
that surprise; (3) the extent to which allowing the
testimony would disrupt the trial; (4) the explanation
for the party's failure to name the witness before trial;
and (5) the importance of the testimony.”
318 F.3d 592, 596 (4th Cir. 2003) (quoting Rambus,
Inc. v. Infineon Technologies AG, 145 F.Supp.2d 721,
Based on the Motion and materials submitted, it appears that EPS’s
expert, Mr. Nranian, timely issued his Opening Expert Report on April 28,
2023, and his Rebuttal Expert Report on June 8, 2023. See Doc 186-1 at 3; Doc.
Doc. 188 at 3 (sealed). On August 18, 2023, Mr. Nranian issued a Supplemental
Report. DTNA seeks to strike the opinions set forth in this Supplemental
1. Paragraphs 4 through 7
First, DTNA takes issue with the following paragraphs of the
Supplemental Report, which purport to relate to benchtop testing conducted
by Anodico “using a similar procedure to that described by” Mr. Krantz:
4. In addition, since authoring my prior reports in this
matter, I have received additional information
including the reports from DTNA’s experts, as well as
additional information that has been produced in this
5. For example, I have reviewed a report (and
appendices) served by DTNA on June 8, 2023 from
Anodico titled Mass Loss Test Report for Aluminum
Samples. I also received a corrected Appendix D
containing corrected test results from the tests
performed by Anodico.
6. The test results observed by Anodico, as set forth in
the Anodico report and corrected Appendix D, further
support my opinion that the Accused Products infringe
the asserted claims of U.S. Reissue Patent No.
RE47,494 (“the Patent-in-Suit” or “the ’494 Patent”).
More specifically, the results from the Anodico testing
further support my opinion that the “tube inserts” or
“stiffeners” in the Accused Products meet the
sacrificial anode limitation of the asserted claims.
7. As shown in the Anodico report, for each “Test #” in
which a “tube insert” or “stiffener” was part of the test,
the “tube insert” or “stiffener” had a higher corrosion
rate and mass loss rate than the “tube.” See, e.g.,
Corrected Appendix D to Anodico Test Report, Test #s
1, 3, and 6. In most instances, the corrosion rate and
mass loss rate of the “stiffener” was significantly
higher than the “tube.” These results, further support
my opinion that the Accused Products meet the
“sacrificial anode” limitation of the Asserted Claims,
as construed by the Court, because they demonstrate
that the Accused Products have a piece of metal (i.e.,
tube stiffener) used to protect another piece of metal
(i.e., the tube below the stiffener) by preferentially
Doc. 175-4 at 3 (Anodico Report); Doc. 188 at 3-4
DTNA contends that these paragraphs reflect “new and improved”
opinions based on testing performed by DTNA, and that EPS intends to use
these opinions to “avert summary judgment.” Doc. 186-1 at 3. DTNA further
argues that, although expert discovery was extended through and including
August 18, 2023, that extension was limited to expert discovery regarding the
Mod8 and the Martin Accessory, that Mr. Nranian’s arguable disclosure of the
opinions set forth in his Supplemental Report during his June 29, 2023
deposition do not justify “the disclosure of untimely opinions in a supplemental
report,” Doc. 186-1 at 4, and that DTNA’s Anodico testing was disclosed to EPS
on July 22, 2023, almost a month prior to the issuance of Mr. Nranian’s
The undersigned is not persuaded that Mr. Nranian’s opinions, as set
forth in paragraphs 4 through 7 of his Supplemental Report, should be
stricken. First, although DTNA argues that expert discovery was extended for
the limited purpose of allowing the parties’ experts’ time to consider only the
Mod8 and Martin Accessory, the undersigned’s July 24, 2023 Order did not
explicitly set forth such a limitation. Additionally, it appears that Mr.
Nranian’s opinion regarding, at least, the benchtop testing conducted by EPS
(and which Anodico contends its testing was intended to mimic) was disclosed
during his June 29, 2023 deposition. Finally, in paragraphs 4 through 7, Mr.
Nrarian is not discussing new testing that he performed but is commenting on
the testing performed by Anodico.
2. The Remainder of the Supplemental Report
DTNA also argues that the Court should strike the remainder of Mr.
Nranian’s Supplemental Report because it espouses additional opinions
regarding the Mod8.
In response, EPS asserts that Mr. Nranian’s supplemental opinions
regarding the Mod8 were timely disclosed during the extended expert
discovery period, and that, in any event, EPS’s expert, Dr. Sanders, issued a
supplemental declaration on September 1, 2023 addressing Mr. Nranian’s
Supplemental Report. See Doc. 184-2 (sealed).
As addressed above, the undersigned extended the deadline by which the
parties were to complete expert discovery through and including August 18,
2023. It appears that Mr. Nranian’s Supplemental Report was issued on that
date, and that Dr. Sanders has had an opportunity to respond to it.
IT IS THEREFORE ORDERED that Defendant Daimler Truck North
America LLC’s Motion to Exclude Testimony and Evidence about Resistivity
and Benchtop Testing (Doc. 163) and Defendant Daimler Truck North America
LLC’s Motion to Strike Untimely Expert Opinions (Doc. 186) are DENIED.
Signed: November 14, 2023
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