Ameritox, Ltd. v. Millennium Health, LLC

Filing 409

ORDER re #397 Trial Brief - Millennium Health LLC's Supplemental Pretrial Submission in Support of Its Motion in Limine to Exclude Expert Testimony of Carl G. Degan. Signed by District Judge William M. Conley on 4/15/2015. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
AMERITOX, LTD., and
MARSHFIELD CLINIC,
Plaintiffs,
v.
MILLENNIUM HEALTH, LLC.

ORDER
13-cv-832-wmc

Defendant.
Before the court is defendant Millennium Health, LLC’s supplemental pretrial
submission in support of its motion in limine to exclude expert testimony of Carl G.
Degen, plaintiffs’ damages expert. (Dkt. #397.) In the motion, Millennium argues that
the court should exclude Degen’s opinion because he relied on information from
Ameritox employees who lacked personal knowledge, rendering that information
unreliable.
The court already dealt with this objection during the final pretrial conference,
and defendant’s supplemental submission offers nothing new. As the court explained in
the hearing, the court will not strike Degen’s expert testimony based on his assessment
that he could rely on Dr. Lieder’s statements about the U.D. Testing license without
going to the original source of that information -- Ameritox’s founder Joel McEndree who
negotiated the U.D. Testing license.
While the court did question whether Lieder could testify directly based on what
he learned about the earlier negotiation of the U.D. Testing license, it appears that Mr.
McEndree will be able to provide dirct testimony, making what information Degen
received indirectly about McEndree’s negotiations essentially a moot point.

As for both Lieder and Gardner, the court determined that both could testify as to
how the license worked in practice during their tenure with the company, leaving to the
jury to decide the possible relevance that may have as to the likely negotiation and
implementation of the U.D. Testing license.
Putting aside the issue of who can provide testimony about the negotiations
surrounding the U.D. Testing license, in response to defendant’s motion, plaintiffs direct
the court to: (1) other information -- namely a 2004 Program Testing Service Agreement
-- on which Degen relied in forming his opinion about Ameritox “obtain[ing] a license to
a commercial-ready technology demonstrated in an existing UDT product”; and (2)
Degen’s own experience in intellectual property rights to support his opinion that the
third-year rate was most comparable to the hypothetical negotiation here. (Pls.’ Resp.
(dkt. #400) 2-3.) In combination, if not alone, this additional information provides a
sufficient foundation for Degen’s expert opinions to be admissible under Rule 703. The
concerns raised by defendant simply go to the weight the jury may assign to those
opinions.
Entered this 15th day of April, 2015.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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