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Koninklijke Philips Electronics N. V. v. Zoll Medical Corp.

United States District Court, D. Massachusetts

June 19, 2017

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

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON, United States District Judge

         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. For the following reasons, those motions will be denied.

         I. 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).

         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 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. 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.

         That 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).

         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, LLCv.Kohler Co., 965 F.Supp.2d 170, 173 (D. Mass. 2013). Defendants' objections to Mr. ...


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