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 Strike and/or Exclude
Testimony of Defendants' Designated Expert Witness
Christopher J. Thomsen (Dkt. #179). After reviewing the
relevant pleadings, the Court grants in part and denies in
part Tech Pharmacy's motion.
March 10, 2017, Tech Pharmacy filed the present motion (Dkt.
#179). On March 22, 2017, Defendants filed a response (Dkt.
#199). On March 29, 2017, Tech Pharmacy filed a reply (Dkt.
#214). 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 testimony of
Defendants' expert witness Christopher J. Thomsen
(“Thomsen”). Tech Pharmacy makes two arguments
for why the Court should strike or exclude Thomsen's
report. First, Tech Pharmacy argues Thomsen improperly relies
on material the Court has already excluded in a previous
order. Second, Tech Pharmacy argues that Thomsen's report
is unreliable and fails to meet Rule 702 standards.
initial matter, the Court strikes sections of Thomsen's
report that do not conform to the Court's rulings.
Specifically, the Court strikes from Thomsen's report any
anticipation or obviousness combination that includes the KVM
Envoy system, a reference the Court precluded Defendants from
adding to their invalidity contentions (Dkt. #285). The Court
further strikes from Thomsen's report the section in
which Thomsen offers his opinion about how the
patents-in-suit are directed to unpatentable subject matter.
The Court determined the patents-in-suit are eligible for
patent protection in its July 24, 2017 order denying
Defendants' motion for summary judgment (Dkt. #280).
Pharmacy does not contest Thomsen's qualifications or the
relevancy of his testimony. Instead, Tech Pharmacy's main
challenges to Thomsen's report involve its reliability.
Under Federal Rule of Evidence 702, “[r]eliability is
determined by assessing ‘whether the reasoning or
methodology underlying the testimony is scientifically
valid.'” Knight v. Kirby Inland Marine
Inc., 482 F.3d 347, 352 (quoting Daubert, 509
U.S. at 592-93). When determining reliability, the Court must
focus on the expert's methodology and not the conclusions
generated by it. Daubert, 509 U.S. at 595.
“If, however, ‘there is simply too great an
analytical gap between the [basis for the expert opinion] and
the opinion proffered, ' the court may exclude the
testimony as unreliable.” Orthoflex, Inc. v.
ThermoTek, Inc., 986 F.Supp.2d 776, 783 (N.D. Tex. 2013)
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
review of Thomsen's report, the Court finds that
Thomsen's testimony is reliable and therefore admissible.
First, Tech Pharmacy's complaints about Thomsen's
opinions on anticipation are without merit. Tech Pharmacy
states Thomsen's opinions on anticipation are unreliable
because he fails to apply the correct test, and he improperly
defines a person of ordinary skill in the art (POSITA). Tech
Pharmacy points to Thomsen's deposition testimony as
evidence that he applied the incorrect standard for
anticipation (Dkt. #179 at p. 5). However, Thomsen states in
his report the correct standard for anticipation (Dkt. #179,
Exhibit 1 at ¶ 36 (“Regarding the legal doctrine
of anticipation, it is my understanding that claims of a
patent are anticipated (and therefore invalidated) by a prior
art reference if each and every limitation recited in the
claim, as properly construed, is found either explicitly or
inherently in a single prior art ...