United States District Court, D. Massachusetts
Koninklijke Philips N.V. and Philips Electronics North America Corporation, Plaintiffs,
Zoll Medical Corporation, Defendant.
MEMORANDUM & ORDER
NATHANIEL M. GORTON, United States District Judge
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. For the following
reasons, those motions will be denied.
Defendant's Daubert Motions
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).
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).
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 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).
Mr. John C. Jarosz
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
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. Here, Mr.
Jarosz's proposed testimony appears to do so. 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.
same reasoning applies to defendant's arguments with
respect to Mr. Jarosz's consideration of foreign sales,
see id. 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).
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.
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,
LLCv.Kohler Co., 965 F.Supp.2d 170,
173 (D. Mass. 2013). Defendants' objections to Mr.