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Fractus, S.A. v. AT&T Mobility LLC

United States District Court, E.D. Texas, Marshall Division

September 30, 2019

FRACTUS, S.A., Plaintiff,
v.
AT&T MOBILITY LLC, Defendant, T-MOBILE US, INC., T-MOBILE USA, INC., Defendants, CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendants, COMMSCOPE TECHNOLOGIES LLC, Intervenor-Defendant, T-MOBILE US, INC., T-MOBILE USA, INC., CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendants,

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP, UNITED STATES DISTRICT JUDGE

         Before the Court is Intervenor-Defendant CommScope Technologies LLC's (“CommScope”) Motion in Limine No. 10. (Dkt. No. 562.) By its motion in limine, CommScope seeks to preclude Fractus “from referencing Defendants' experts not called at trial.” (Id. at 8.) At a pre-trial conference held in this above-captioned group of consolidated cases, the Court granted the motion in limine to maintain its role as a gate-keeper and ordered supplemental briefing regarding whether expert reports and expert testimony were admissible as admissions against interest. (Dkt. No. 676 at 201:6-16, 204:8-205:3.) Having considered the parties' briefing (Dkt. Nos. 669, 670) and for the reasons set forth herein, the Court is of the opinion that the expert reports and deposition testimony of experts who are not called at trial in this case should be and hereby are EXCLUDED.

         I. Background

         Fractus, S.A. (“Fractus”) brought four separate lawsuits for patent infringement, one each against the four largest United States cellphone carriers: AT&T, Verizon, T-Mobile, and Sprint (collectively, the “Carrier Defendants”).[1] Fractus accused the Carrier Defendants of infringing several of its patents through the use of multiband base station antennas that were sold to the Carrier Defendants by several different manufacturers, including CommScope. (See, e.g., Dkt. No. 1 ¶ 26.) CommScope intervened as a defendant in each of these four cases. (Dkt. No. 87.) After a series of settlements, three lawsuits remained-the AT&T Case, the Verizon Case, and the T-Mobile Case-each of which included CommScope antennas as accused products.[2] However, two of the cases-the Verizon Case and the T-Mobile Case-included accused products manufactured by other non-party manufacturers. Therefore, at the remaining parties' agreement, the Court ordered the remaining claims asserted against CommScope antennas to be severed from each of the cases and consolidated into a single case for trial. (Dkt. No. 549.) This consolidated trial includes as defendants CommScope as well as the two remaining Carrier Defendants, Verizon and T-Mobile. (Id.)

         The Court did not order consolidation until after the close of expert discovery in each of the respective cases. As a result, approximately fifteen experts were retained by defendants across these cases, including more than ten retained by CommScope, Verizon, and T-Mobile (collectively, the “Defendants”). (Dkt. No. 561 at 9.) Though each of these experts was originally retained to testify in the Defendants' individual trials, Defendants will not call each of these experts in the newly consolidated trial. Defendants seek to preclude Fractus from introducing evidence of expert analyses and testimony provided by the experts that are not called at trial, arguing that such statements would be hearsay. (Id.) Fractus responds that such statements are relevant if they contradict positions taken by the Defendants at trial and are admissible because the defendants have adopted the opinions of their experts as their own. (Dkt. No. 602 at 6.)

         II. Discussion

         The Court finds that the analyses and testimony of experts not called at trial should be excluded. These statements are hearsay under Federal Rule of Evidence (“FRE”) 801. Moreover, even if these statements were not hearsay, the Court finds that they should nonetheless be excluded under FRE 403.

         A. The statements of non-testifying experts are hearsay under FRE 801.

         “There are circumstances where the testimony of an expert witness can serve as an adverse admission against the presenting party.” Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1355 (5th Cir. 1983). However, “[s]uch circumstances must be narrowly construed.” Id. Reviewing the instances in which the Fifth Circuit has found that an expert's testimony constituted an admission against interest, the Court finds that this case does not fall within these narrow circumstances. See 2 Kenneth S. Broun, McCormick on Evidence § 261, at 303 n.12 (7th ed. 2013) (“[I]n general, the opinion of an expert who was not called as a witness should not constitute an admission of the party that sought the opinion.”).

         1. Defendants' expert witnesses are not agents or employees under FRE 801(d)(2)(D).

         In Collins v. Wayne Corp., the Fifth Circuit found that a district court erred by not allowing an expert's deposition into evidence because the expert was employed by the defendant to investigate the accident made the basis of the suit. 621 F.2d 777, 781 (5th Cir. 1980). Under FRE 802(d)(2)(D) a statement is not hearsay when offered against an opposing party if the statement “was made by the party's agent or employee on a matter within the scope of that relationship and while it existed.” However, the facts of Collins and the cases upon which it relies indicate that this rule as applied to experts should be limited to circumstances in which the expert was retained or employed for some purpose other than solely offering an expert opinion in the context of litigation.

         In Collins, the defendant's expert was hired “two days after the accident” “to investigate the bus accident and to report his conclusions” to the defendant. 621 F.2d at 780-82. Similarly, in Brown & Root, Inc. v. American Home Assurance Co., 353 F.2d 113 (5th Cir. 1965), a case involving a shipping accident upon which Collins relied, the Fifth Circuit allowed “a report prepared by a marine surveyor who the cargo underwriter had retained to investigate the casualty and to report his conclusions.” 621 F.2d at 782. In these cases, the expert's report was provided not simply so that the expert could serve as a testifying expert, but to provide factual information to the expert-agent's principal regarding the accident. These experts conducted, in essence, internal investigations.

         The Court, following Fox's command to “narrowly construe[]” circumstances in which the “testimony of an expert witness can serve as an adverse admission, ” finds that such circumstances are properly limited to circumstances such as Collins and Brown & Root where an expert was retained for purposes other than providing expert opinion testimony. There is good reason for this distinction. An expert hired for the purpose of providing a report outside litigation may well be acting as an agent, whereas a testifying expert typically is not.

         For an agency relationship to exist, an “agent shall act on the principal's behalf and subject to the principal's control.” Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006) (emphasis added). “In theory, despite the fact that one party retained and paid for the services of an expert witness, expert witnesses are supposed to testify impartially in the sphere of their expertise.” Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164 (3d. Cir. 1995). ‚ÄúSince an expert witness is not subject to the control of ...


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