United States District Court, E.D. Texas, Marshall Division
PAYNE UNITED STATES MAGISTRATE JUDGE
patent case, Defendants move to exclude expert opinions of
Walter Bratic, Plaintiff's damages expert (Dkt. No.
298). Bratic opines that Plaintiff is entitled
to reasonable royalty damages up to the expected date of
trial for the alleged infringement of Plaintiff's U.S.
Patent Nos. 8, 682, 357; 8, 897, 828; 9, 320, 018; 9, 532,
330; 9, 681, 466; and 8, 953, 641. (Dkt. No. 298-2); (Dkt.
No. 298-3). Defendants contend that Bratic's damages
opinions are unreliable and not of assistance to the trier of
fact, and thus should be excluded under Federal Rule of
Evidence 702 and the Supreme Court's decision in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993). (Dkt. No. 298). Having considered the parties'
briefings, the parties' arguments raised at the April 23,
2019 pretrial hearing, and the relevant authorities, the
Court rules as follows.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which provides:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Thus, the first inquiry under Rule 702 is
determining whether the proffered witness is actually
‘qualified to testify by virtue of his
“knowledge, skill, experience, training, or education.
A district court should refuse to allow an expert witness to
testify if it finds that the witness is not qualified to
testify in a particular field or on a given subject.'
St. Martin v. Mobil Expl. & Producing U.S. Inc.,
224 F.3d 402, 412 (5th Cir. 2000) (quoting Fed.R.Evid. 702).
Rule 702 and Daubert, ‘“a district court
has broad discretion to determine whether a body of evidence
relied upon by an expert is sufficient to support that
expert's opinion.”' Johnson v. Arkema,
685 F.3d 452, 458-59 (5th Cir. 2012) (quoting Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir.
2007)). The court must act as a gatekeeper, ensuring that
admitted evidence is reliable and relevant. Curtis v.
M&S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir.
1999) (citing Daubert, 509 U.S. at 592-93, 597, 113
S.Ct. at 2796, 2799). Accordingly, the Court's
gatekeeping function involves a two-part inquiry into
reliability and relevance. In re Pool Prod. Distribution
Mkt. Antitrust Litig., 166 F.Supp.3d 654, 661 (E.D.
La.), appeal dismissed (5th Cir. Oct. 27, 2016).
the reliability inquiry, the proponent of the expert's
opinion testimony need not prove that the expert's
testimony is correct - the proponent need only prove
by a preponderance of the evidence that the testimony is
reliable. Johnson, 685 F.3d at 459
(emphasis added); see also i4i Ltd. v. Microsoft
Corp., 598 F.3d 831, 854 (Fed. Cir. 2010)
aff'd, 564 U.S. 91, 131 S.Ct. 2238, 180 L.Ed.2d
131 (2011) (“Daubert and Rule 702 are
safeguards against unreliable or irrelevant opinions, not
guarantees of correctness.”). The expert opinion must
be grounded in the methods and procedures of science - the
opinion must go beyond unsupported speculation or subjective
belief. Daubert, 509 U.S. at 590, 113 S.Ct. 2786.
The court's “focus, of course, must be solely on
principles and methodology, not on the conclusions
that they generate.” Id. at 595, 113 S.Ct.
2786 (emphasis added).
determining if expert testimony is reliable, courts consider
the following flexible, non-exhaustive list of factors:
(1) whether the theory or technique 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 method used
and the existence and maintenance of standards controlling
the technique's operation; and
(4) whether the theory or method has been generally accepted
by the scientific community.
Johnson, 685 F.3d at 459 (citing Curtis,
174 F.3d at 668-69 (citing Daubert, 509 U.S. at
593-94, 1113 S.Ct. 2786)). ...