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 Dr. Tim A.
Williams (Dkt. #177). After reviewing the relevant pleadings,
the Court denies Tech Pharmacy's motion.
March 10, 2017, Tech Pharmacy filed the present motion (Dkt.
#177). On March 24, 2017, Defendants filed a response (Dkt.
#205). On March 31, 2017, Tech Pharmacy filed a reply (Dkt.
#217). On April 6, 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 exclude and/or strike the testimony of
Defendants' expert Dr. Tim Williams. Tech Pharmacy
asserts Dr. Williams's report contains no actual
conclusions regarding the patentability. Tech Pharmacy argues
Dr. Williams's report parrots arguments from
Defendants' Alice motion for partial summary
judgment and from another expert report, without offering any
respond it is unremarkable that Dr. Williams's report
contains some language previously crafted by counsel and
found in prior briefings. Defendants contend this is true
because of the consistency of Defendants' position
throughout this litigation and the involvement of the same
attorneys in the preparation of expert reports.
26(a)(2)(B) requires that an expert report be “prepared
and signed by the witness, ” but an attorney may assist
the expert in drafting the report:
Rule 26(a)(2)(B) does not preclude counsel from providing
assistance to experts in preparing the reports, and indeed,
with experts such as automobile mechanics, this assistance
may be needed. Nevertheless, the report, which is intended to
set forth the substance of the direct examination, should be
written in a manner that ...