Expert's testimony about non-infringement expert's opinion was precluded
Thynge, J. Defendants’ motion to preclude certain testimony from an infringement expert was granted in part and denied in part.
Defendants’ motion to preclude certain testimony of infringement expert Charles L. Jackson as unreliable pursuant to FRE 702 and 703 was denied. The Court found that the contention that there is no factual foundation for the expert’s opinions is misplaced in that his report contains sufficient data to support his conclusions and inadequate evidence has been presented to refute his methodology. His analyses can be tested through cross-examination.
Defendants also move pursuant to FRCP 26(a)(2)(B) to limit the expert’s testimony to opinions contained in his report, and specifically to preclude testimony regarding the doctrine of equivalents and rebuttal of the report of Albert Whited, defendants’ infringement expert. Because Jackson did not include a doctrine of equivalents analysis in his report, he was precluded from offering a DOE opinion at trial. The Court ruled that although Jackson had not formulated an opinion on Whited’s expert report at the time of Jackson’s deposition over six months before trial, Plaintiff had a duty to supplement its prior discovery responses or advise defendants of Jackson’s additional opinions if he planned to offer an opinion at trial. Because the opinion was not supplemented, Defendants’ motion to preclude Jackson to testimony in response to the opposing expert’s non-infringement report was granted.
A copy of the full opinion is available here.
