United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Tech Pharmacy Services, LLC's
(“Tech Pharmacy”) Motion to Exclude and/or Strike
Testimony of Defendants' Designated Expert Witness David
Kvancz (Dkt. #178). After reviewing the relevant pleadings,
the Court grants in part and denies in part Tech
March 10, 2017, Tech Pharmacy filed the present motion (Dkt.
#178). On March 23, 2017, Defendants filed a response (Dkt.
#202). On March 30, 2017, Tech Pharmacy filed a reply (Dkt.
#216). On April 5, 2017, Defendants filed a sur-reply (Dkt.
Rule of Evidence 702 provides for the admission of expert
testimony that assists the trier of fact to understand the
evidence or to determine a fact in issue. Fed.R.Evid. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the
Supreme Court instructed courts to function as gatekeepers,
and determine whether expert testimony should be presented to
the jury. 509 U.S. 579, 590-93 (1993). Courts act as
gatekeepers of expert testimony “to make certain that
an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Kuhmo Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999).
party offering the expert's testimony has the burden to
prove that: (1) the expert is qualified; (2) the testimony is
relevant to an issue in the case; and (3) the testimony is
reliable. Daubert, 509 U.S. at 590-91. A proffered
expert witness is qualified to testify by virtue of his or
her “knowledge, skill, experience, training, or
education.” Fed.R.Evid. 702. Moreover, to be
admissible, expert testimony must be “not only relevant
but reliable.” Daubert, 509 U.S. at 589.
“This gate-keeping obligation applies to all types of
expert testimony, not just scientific testimony.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th
Cir. 2002) (citing Kuhmo, 526 U.S. at 147).
deciding whether to admit or exclude expert testimony, the
Court should consider numerous factors. Daubert, 509
U.S. at 594. In Daubert, the Supreme Court offered
the following, non-exclusive list of factors that courts may
use when evaluating the reliability of expert testimony: (1)
whether the expert's theory or technique can be or has
been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or
potential rate of error of the challenged method; and (4)
whether the theory or technique is generally accepted in the
relevant scientific community. Id. at 593-94;
Pipitone, 288 F.3d at 244. When evaluating
Daubert challenges, courts focus “on [the
experts'] principles and methodology, not on the
conclusions that [the experts] generate.”
Daubert, 509 U.S. at 595.
Daubert factors are not “a definitive
checklist or test.” Id. at 593. As the Supreme
Court has emphasized, the Daubert framework is
“a flexible one.” Id. at 594. The test
for determining reliability can adapt to the particular
circumstances underlying the testimony at issue.
Kuhmo, 526 U.S. at 152. Accordingly, the decision to
allow or exclude experts from testifying under
Daubert is committed to the sound discretion of the
district court. St. Martin v. Mobil Expl. & Producing
U.S., Inc., 224 F.3d 402, 405 (5th Cir. 2000) (citations
Pharmacy moves to strike and/or exclude the testimony of
Defendants' expert David Kvancz (“Kvancz”).
Tech Pharmacy asserts Kvancz's opinions are wholly
disconnected from the well-established legal principles for
evaluating whether a claimed invention satisfies the
requirements of obviousness under 35 U.S.C. § 103.
Specifically, Tech Pharmacy finds the Kvancz's report
fails to: (1) presume the patents-in-suit were valid and
apply the correct burden of proof for obviousness; (2)
conduct an element-by-element comparison with the prior art
to demonstrate that the claimed invention as a whole is
obvious; (3) identify any specific prior art combinations
that render the asserted claims obvious; and (4) consider
objective indications of non-obviousness. Because of these
fundamental analytical failures and omissions, Tech Pharmacy
describes Kvancz's proposed testimony as unreliable and
subject to exclusion.
respond by stating Tech Pharmacy's entire motion is based
on an incorrect characterization that Kvancz's report
contains opinions on the ultimate validity of the
patents-in-suit. Rather, Defendants contend Kvancz's
report concludes that the asserted claims recite the use of
generic hardware and software in an attempt to automate basic
and long-known pharmacy operations and functions.
Kvancz is undoubtedly qualified by his education and
experience to serve as an expert in modern pharmacy
operations. He earned his undergraduate degree in Pharmacy
from Albany College of Pharmacy in Albany, New York (Dkt.
#178, Exhibit 2 at ¶ 3). He received his Master's
degree in Hospital Pharmacy from The Ohio State University in
Columbus, Ohio (Dkt. #178, Exhibit 2 at ¶ 3). Kvancz has
nearly forty years of professional experience working with
pharmacy operations (Dkt. #178, Exhibit 2 at ¶ 4). Based
on his expert report, Kvancz intends to offer the following
opinions: (1) the asserted claims are drawn to traditional
pharmacy operations and basic components; and (2) the
asserted claims are obvious elements in a pharmacy
considered the reliability and relevance of each of these
proffered opinions, the Court will permit Kvancz to offer
expert testimony with specific exclusions. The Court finds
that Kvancz should be allowed to offer his opinion about
whether the asserted claims are drawn to traditional pharmacy
operations and basic components. Kvancz has years of industry