United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT & UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion to Strike and
Exclude Certain Portions of the Expert Testimony of Sukumaran
Nair, Ph.D. (Dkt. #99); Defendant's Motion to Strike the
Expert Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez
(Dkt. #101); Defendant Verizon Wireless's Motion to
Exclude the Opinion of Dr. Edwin A. Hernandez (Dkt. #102);
and Plaintiff Mobility Workx, LLC's Motion to Strike
Portions of James Proctor's Expert Report (Dkt. #104).
Having considered the Motions and the relevant pleadings, the
Court finds that: (1) Defendant's Motion to Strike and
Exclude Certain Portions of the Expert Testimony of Sukumaran
Nair, Ph.D. (Dkt. #99) is DENIED in part-the
remaining disputes will be taken up at the Final Pretrial
Conference; (2) Defendant's Motion to Strike the Expert
Disclosure of Dr. Sumi Helal and Dr. Edwin Hernandez (Dkt.
#101) is GRANTED; (3) Defendant Verizon
Wireless's Motion to Exclude the Opinion of Dr. Edwin A.
Hernandez (Dkt. #102) is DENIED; and (4)
Plaintiff Mobility Workx, LLC's Motion to Strike Portions
of James Proctor's Expert Report (Dkt. #104) is
DENIED in part-the remaining disputes will
be taken up at the Final Pretrial Conference.
Mobility Workx, LLC, (“Mobility Workx”) is a
limited liability company organized and existing under the
laws of the State of Florida (Dkt. #1). Mobility Workx owns
several complex patents in various fields including
communications systems and wireless network emulators (Dkt.
#1). Among Mobility Workx' portfolio of patents are
“patents that teach valuable innovations and
improvements related to predictive systems for supporting
wireless communications” (Dkt. #1). This action
concerns three of those patents.
to Mobility Workx, Defendants Verizon Communications, Inc.
and Cellco Partnership D/B/A Verizon Wireless
(“Verizon”) infringed on three of Mobility
Workx' patents: namely, Mobility Workx'
“‘508 Patent, ” “‘417 Patent,
” and “‘330 Patent” (Dkt. #1). The
‘508 Patent was issued on April 13, 2010 as U.S. Patent
No. 7, 697, 508 (Dkt. #1). The patent was entitled
“System, Apparatus, and Methods for Proactive
Allocation of Wireless Communication Resources” and was
invented by Edwin A. Hernandez and Abdelsalam A. Helal (Dkt.
#1). According to Mobility Workx, the ‘508 Patent
“teaches, among other things, a system for allocation
of resources in a communication network for supporting
wireless communications” (Dkt. #1). Specifically, the
‘508 Patent “leads to reduced delays and
information losses in wireless communication networks by
reducing registration overheard and setup times associated
with mobile node handoffs” (Dkt. #1). This is achieved
“by allocating communication network resources
proactively rather than reactively” (Dkt. #1).
‘417 Patent was issued on July 3, 2012 as U.S. Patent
No. 8, 213, 417 (Dkt. #1). The patent was also entitled
“System, Apparatus, and Methods for Proactive
Allocation of Wireless Communication Resources” and was
also invented by Edwin A. Hernandez and Abdelsalam A. Helal
(Dkt. #1). The ‘417 Patent accomplishes the same feats
as the ‘508 Patent discussed above (Dkt. #1).
‘330 Patent was issued on June 12, 2007 as U.S. Patent
No. 7, 231, 330 (Dkt. #1). The patent was entitled
“Rapid Mobility Network Emulator Method and
System” and was invented by Edwin A.
Hernandez-Mondragon and Abdelsalam A. Helal (Dkt. #1). The
‘330 Patent, according to Mobility Workx,
“teaches, among other things, a system and method for
emulating mobile network communications” (Dkt. #1). The
‘330 Patent is different than the ‘508 and
‘417 Patents. For instance, the ‘330 Patent
provides “for the modeling and testing of various
mobile network configurations and scenarios” (Dkt. #1).
This is accomplished by “dynamically adjusting the
signal reception sensitivity and signal transmission strength
of each wireless node and by emulating at least one wireless
network node attribute to stimulate network conditions by the
mobile node in communicating with network-connected
nodes” (Dkt. #1).
‘508 Patent, ‘417 Patent, and ‘330 Patent
were all assigned by Dr. Hernandez and Dr. Helal-Mobility
Workx' managing partners-to Mobility Workx. Consequently,
Mobility Workx is “the owner of all substantial right,
title, and interest in and to the Patents-in-Suit”
(Dkt. #1). Despite Mobility Workx owning the rights to each
patent, Mobility Workx asserts that Verizon has begun
offering to sell a product (“the Accused
Product”) which infringes on all three of Mobility
Workx' patents (Dkt. #1). Verizon denies infringing upon
Mobility Workx' ‘508 Patent, ‘417 Patent, and
‘330 Patent (Dkt. #12).
both parties served their respective Expert Reports, each
party filed motions to strike and/or exclude specific experts
or opinions. At the outset, it should be noted that each
Motion filed by Mobility Workx or Verizon includes its own
specific facts. For the sake of clarity, this portion of the
Court's opinion only addresses an overview of the case
and leave the Motion- specific facts for each respective Part
below. The Motions that those portions of the opinion will
address are as follows.
concerns Verizon's Motion to Strike and Exclude Certain
Portions of the Expert Testimony of Sukumaran Nair, Ph.D.
(Dkt. #99). In its Motion, Verizon claims that Dr. Nair's
report contains new infringement theories that were absent
from Mobility Workx Infringement Contentions
(“ICs”) (Dkt. #99). Verizon accordingly requests
that these new theories be stricken (Dkt. #99). Additionally,
Verizon claims that certain opinions of Dr. Nair “are
incomplete, conclusory, and/or conflicting with the
Court's claim construction” (Dkt. #99). Verizon
requests that those opinions be excluded under
Daubert (Dkt. #99). Mobility Workx opposes
Verizon's Motion and claims that: (1) the Motion is
untimely; (2) Dr. Nair does not introduce any new theories of
infringement; and (3) Dr. Nair's opinions comply with the
Daubert standard (Dkt. #111).
addresses Verizon's Motion to Strike the Expert
Disclosure of Dr. Sumi Helal and Dr. Edwin A. Hernandez (Dkt.
#101). In this Motion, Verizon argues that Mobility Workx
designated Dr. Helal as an expert but failed to serve Verizon
with an expert report as required by Rule 26(a)(2)(B) and the
Court's Scheduling Order (Dkt. #101). Verizon further
asserts that Mobility Workx designated Dr. Hernandez as an
expert over certain topics that “were not contained
within Dr. Hernandez's ‘expert' report”
(Dkt. #101). Thus, Verizon requests that the Court strike the
expert disclosure of each of Mobility Workx' experts.
Mobility Workx counters that: (1) Verizon's Motion is
untimely; and (2) Dr. Helal and Dr. Hernandez concurred with
Dr. Nair's revised expert report and thus there is no
element of surprise for Verizon. Mobility Workx also requests
that, should the Court grant Verizon's Motion, the Court
additionally grant Mobility Workx leave to file a late expert
report by Dr. Helal and Dr. Hernandez (Dkt. #109).
III then addresses Verizon's third Motion. Following its
first two Motions, Verizon filed a Motion to Exclude the
Opinions of Dr. Edwin A. Hernandez (Dkt. #102). Verizon
claims that Dr. Hernandez is not qualified as a damages
expert and that his royalty rate does not reflect
“reliable principles and methods” and is not
“based on sufficient facts or data” (Dkt. #102).
Accordingly, Verizon requests that the Court exclude the
opinions of Dr. Hernandez (Dkt. #102). Mobility Workx opposes
Verizon's Motion (Dkt. #110). Mobility Workx claims that
Dr. Hernandez is qualified to render opinions on damages and
that the methodology he relied upon is sound (Dkt. #110).
Part IV addresses Mobility Workx' Motion to Strike
Portions of James Proctor's Expert Report (Dkt. #104).
Here, Mobility Workx requests that the Court strike
Proctor's obviousness opinions, standards opinions, all
portions referring to new references, discussion of the
'330 background, all unsupported written description
opinions, all portions contrary to the Court's claim
construction, all references to incorporated invalidity
charts, paragraph 208 referring to Claim 7, and any
highlighted portions in Mr. Proctor's Expert Report not
discussed in Mobility Workx' Motion (Dkt. #104). Verizon
opposes Mobility Workx' Motion and claims that: (1)
Proctor's obviousness opinion was properly disclosed; (2)
Proctor's standards opinion was properly disclosed; (3)
Proctor's reliance on Mobile IPv6, Gwon II, and 3G UMTS
specifications is proper; (4) the ‘330 patent
background section is proper; (5) Proctor's written
description opinions are properly supported under
Daubert; (6) Proctor's discussion of Claim 7 of
the ‘417 Patent is proper; and (7) highlighted portions
of Proctor's report are not properly the subject of
Mobility's Motion (Dkt. #108). The Court now addresses
Verizon and Mobility Workx' respective Motions.
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
outset, the Court notes that both parties have raised
arguments surrounding the timeliness of these disputes.
Mobility Workx and Verizon each argue that the other party
has waived any arguments surrounding the expertise,
methodology, reliability, or conclusions of the other
party's experts. While each party is required to adhere
to the Court's Scheduling Order, equity and the
Court's gatekeeping role under Daubert also
factor in to whether the Court will consider arguably
dilatory claims. To be sure, it is axiomatic that the Court
serves as a gatekeeper over all expert testimony to ensure a
fair judicial process. See Kuhmo Tire Co., 526 U.S.
at 152. Therefore, irrespective of Verizon and Mobility
Workx' disputes over a potential waiver of claims, the
Court finds that it must exercise its gatekeeping authority.
The decision of the Court ensures that the judicial
proceeding is equitable. Each party claims that the other
party's arguments are waived yet asks for its own
arguments to be preserved. By hearing all arguments, and
foregoing the deadlines set out in the Scheduling Order
in this instance,  each party receives the benefit
of having its own argument heard while facing the reality
that the other party's countervailing arguments must also
receive the same leniency. Because this is the most equitable
manner for proceeding in this instance, the Court continues,
without addressing Verizon and Mobility Workx' waiver
arguments, to the merits.
previously aforementioned, there are four pending disputes.
Those disputes include: (1) Defendant's Motion to Strike
and Exclude Certain Portions of the Expert Testimony of
Sukumaran Nair, Ph.D. (Dkt. #99); (2) Defendant's Motion
to Strike the Expert Disclosure of Dr. Sumi Helal and Dr.
Edwin Hernandez (Dkt. #101); (3) Defendant Verizon
Wireless's Motion to Exclude the Opinion of Dr. Edwin A.
Hernandez (Dkt. #102); and (4) Plaintiff Mobility Workx,
LLC's Motion to Strike Portions of James Proctor's
Expert Report (Dkt. #104). The Court addresses each in turn.
Defendant's Motion to Strike and Exclude Certain Portions
of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99);
first filed a Motion to Strike and Exclude Certain Portions
of the Expert Testimony of Sukumaran Nair, Ph.D. (Dkt. #99).
Verizon claims that Dr. Nair's report contains new
infringement theories that were absent from Mobility
Workx' Infringement Contentions (“ICs”).
Verizon also claims that certain opinions of Dr. Nair
“are incomplete, conclusory, and/or conflicting with
the Court's claim construction” (Dkt. #99). As a
result of these contentions, Verizon requests that any new
theories and unsupported opinions be stricken and/or excluded
under Daubert (Dkt. #99). Mobility Workx opposes
Verizon's Motion and claims that Dr. Nair does not
introduce any new theories of infringement and, further, that
Dr. Nair's opinions comply with Daubert (Dkt.
#111). The Court first addresses Verizon's claim that Dr.
Nair has inserted new theories absent from Mobility
Workx' Infringement Contentions. Following that
discussion, the Court will then address Verizon's
Theories of Infringement
the Local Patent Rules, a party asserting infringement must
“serve infringement contentions on each defending
party.” ROY-G-BIV Corp. v. ABB, Ltd., 63
F.Supp.3d 690, 699 (E.D. Tex. Aug. 8, 2014) (discussing U.S.
Dist. Ct. Rules E.D. Tex., Patent Rule 3-1). These
contentions must “set forth specific theories of
infringement at the outset of the case.” Orion IP,
LLC v. Staples, Inc., 407 F.Supp.2d 815, 817 (E.D. Tex.
Jan. 9, 2006). “Expert infringements reports may not
introduce theories not previously set forth in infringement
contentions.” ROY-G-BIV Corp., 63 F.Supp.3d at
699; see also Realtime Data, LLC v. NetApp, Inc.,
2017 WL 4844254, at *1 (E.D. Tex. Oct. 26, 2017) (quoting the
same language); Godo Kaisha IP Bridge 1 v. Broadcom
Limited, 2017 WL 2869331, at *1 (E.D. Tex. Apr. 27,
2017) (quoting the same language); Core Wireless
Licensing, S.A.R.L. v. LG Electronics, Inc., 2016 WL
3655302, at *1 (E.D. Tex. Mar. 21, 2016) (quoting the same
language); SSL Services, LLC v. Cisco Systems, Inc.,
2016 WL 727673 at, *7 (E.D. Tex. Feb. 24, 2016); Better
Mouse Company, LLC v. SteelSeries APS, 2016 WL 7665892,
at *1 (E.D. Tex. Jan. 8, 2016) (stating that the purpose of
the Local Patent Rules is “to require the parties to
crystallize their theories of the case early in the
litigation and to adhere to those theories once they have
been disclosed.” O2 Micro Int'l Ltd. v.
Monolithic Power Sys., Inc., 467 F.3d 1355, 1364 (Fed.
Cir. 2006)). As ROY-G-BIV Corp. continues, however:
The scope of infringement contentions and expert reports are
not  coextensive. Infringement contentions need not
disclose “specific evidence nor do they require a
plaintiff to prove its infringement case, ” EON
Corp. IP Holdings, LLC v. Sensus USA Inc., No.
6:09-cv-116, 2010 WL 346218, *2 (E.D. Tex. Jan. 21, 2010),
whereas expert reports must include a complete statement of
the expert's opinions, the basis and reasons for them,
and any data or other information considered when forming
them. Fed.R.Civ.P. 26(a)(2)(B).
Id. at 699. A degree of generality is permitted
because “[i]nfringement contentions are not intended to
act as a forum for argument about the substantive issues but
rather serve the purpose of providing notice to the
Defendants of infringement theories beyond the mere language
of the patent claim.” Motion Games, LLC v. Nintendo
Co., 2015 WL 1774448, at *4 (E.D. Tex. Apr. 16, 2015)
(citing Linex Techs. Inc. v. Belkin Int'l, Inc.,
628 F.Supp.2d 703, 713 (E.D. Tex. Sept. 19, 2008)).
argues that Dr. Nair improperly introduces a series of new
theories of infringement that are absent from Mobility
Workx' Infringement Contentions. Those allegedly new
theories include, as to the ‘417 Patent: “(1) a
new theory of induced infringement, (2) what serves as the
‘home agent,' (3) what serves as the ‘foreign
agent,' and (4) alleged new theories related to Claim
Elements [417.7c] and [417.d]” (Dkt. #111) (summarizing
the arguments made in Dkt. #99). As to the ‘330 Patent,
the allegedly new theories include: “(1) a theory of
inducement, (2) a doctrine of equivalents argument, and (3)
accusations against previously undisclosed manufacturers and
products” (Dkt. #111) (summarizing the arguments made
in Dkt. #99).
Workx' response is dedicated to factual support
surrounding its new theories, rather than any response that
these theories were already included in its Infringement
Contentions or are not prejudicial to Verizon because Verizon
had notice of the theories. Such arguments do not persuade
the Court that these new theories should now be introduced.
See ROY-G-BIV, 63 F.Supp.3d at 699. With that being
said, the Court is hesitant to strike allegedly new theories
without adequate argument. Thus, the parties are hereby on
notice that the arguments surrounding these purportedly new
theories will be taken up at the final pretrial conference.
Those theories to be taken up include: (1) as to the
‘417 Patent, the theory of induced infringement, what
serves as a home agent, what serves as the foreign agent, and
the new theories related to Claim Element 417.7c and 417.d;
and (2) as to the ‘330 Patent, the theory of
inducement, doctrine of equivalents argument, and accusations
surrounding previously undisclosed manufacturers and
determining the admissibility of expert testimony, proper
deference should be accorded to the role of the jury
“as the arbiter of disputes between conflicting
opinions.” U.S. v. 14.38 Acres of Land, More or
Less Situated in Leflore County, State of Miss., 80 F.3d
1074, 1077 (5th Cir. 1996) (citing Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)). As the
Supreme Court stated in Daubert, any “absurd
and irrational pseudoscientific assertions” can be
properly remedied by the “capabilities of the jury and
of the adversary system generally.” Daubert,
509 U.S. at 595-96. It is for this reason that the Court may
not judge the expert conclusions themselves. See Guy v.
Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004);
see also Wallis v. Hornbeck Offshore Operators, 2014
WL 3809743, at *1 (E.D. La. Aug. 1, 2014) (“As a
general rule, questions relating to the bases and sources of
an expert's opinion affect the weight of the evidence
rather than its admissibility, and should be left for the
finder of fact.”). Rather, “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” See Daubert, 509 U.S. at
596 (citing Rock v. Arkansas, 483 U.S. 44, 61
(1987)); see also Primrose Operating Co. v. Nat'l Am.
Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (“It
is the role of the adversarial system, not the court, to
highlight weak evidence.”). Put simply, a court
“is not concerned with whether the opinion is correct,
but whether the preponderance of the evidence establishes
that the opinion is reliable.” Wallis, 2014 WL
3809743 at *1 (citing Johnson v. Arkema, Inc., 685
F.3d 452, 459 (5th Cir. 2012)).
Verizon argues that “[f]or every limitation of the
asserted claims of the '417 Patent [and ‘330
Patent], Dr. Nair's analysis is incomplete, based on
insufficient evidence, and/or outright conclusory”
(Dkt. #99). Verizon's arguments are as follows:
• 417.1a: “Dr. Nair boldly alleges that
‘Proxy Mobile IPv6 is part of the requirement set by
Verizon for all LTE products,' but his only basis is a
quote from a draft document dated February 2019
relating only to Verizon's LTE Band 13 network access . .
. .” This allegation, according to Verizon, is an
“extreme generalization of Verizon's entire LTE
network . . . based on a very recent document about one
particular segment . . . .”
• 417.1c & 417.1d: “Dr. Nair provides an
incomplete analysis for his identification of the P-GWas the
‘home agent' and the ‘eNodeB/S-GW component
by itself or in conjunction with the S-GW' as the
‘foreign agent.' The Court construed ‘foreign
agent' as ‘a network node on a visited network that
assists the mobile node in receiving communications,' yet
he fails to explain what aspect of Verizon's LTE network
satisfies the required claim element of a ‘visited
network.' Similarly, he defines a ‘home agent'
as ‘the agent that resides in the home network,'
but fails to identify what satisfies the required claim
element of a ‘home network.'. . . . Further, Dr.
Nair tries to redefine ‘visited network' on the
basis of IP addresses and tunneling, but the Court
specifically rejected Mobility's attempt to do the same
during claim construction.”
• 417.1e: “Dr. Nair briefly identifies certain
system messages but provides no analysis whatsoever as to how
the future location of a mobile node is ‘predicted'
and why the alleged foreign agent(s) identified are proximate
to that ‘predicted future location.'
• 417.1f: “Claim Element [417.1f] requires a
‘ghost-mobile node that creates replica IP messages . .
. triggering signals based on a predicted physical location
of such mobile node or distance with relation to the at least
one foreign agent,' but Dr. Nair fails to address these
limitations in his analysis.”
• 417.4: “Dr. Nair mistakenly recites Claim
Element [417.1f] and leaps to the conclusion that
‘Verizon infringes Claim 4.' In that leap, he fails
to provide any analysis of Claim 4, which requires ‘the
at least one ghost mobile node is a proxy element for the at
least one foreign agent and the at least one mobile node, the
at least one ghost-mobile node triggering registration based
on a distance to a foreign agent by relaying security and
shared secrets from a mobile node, and at least one
advertisement message from a foreign agent in a vicinity of
the ghost-mobile node,' especially the emphasized
• 417.7b: “Dr. Nair cites to the same
Verizon-branded document discussed above to state that
‘[t]he location information or position [of a mobile
node] is copied over to the eNodeB by Verizon. This is done
by the Measurement Report and it contains device's
location.' As stated earlier, the information cited from
this document is not representative of Verizon's LTE
network as a whole, and Dr. Nair relies on information
related to ‘Minimization of Drive Test,' which is
directed to testing and not for regular use of Verizon's
• 417.7c: “Dr. Nair provides newly introduced
infringement theories, as discussed above, but for each one
he fails to provide an explanation of how it
‘determin[es] a distance, in the ghost mobile node . .
., to a closest foreign agent with which the mobile node can
complete a handover' as required.”
• 417.7d: “Dr. Nair opines that ‘this
elementi [sic] is met by Verizon's X2 handover and CSG
cells/eNodeBs,' but his cursory analysis only discusses a
particular handover process involving CSG cells, which is not
accused in this case.” • 417.7e: “Dr. Nair
simply restates the claim language-'upon completion of
the handover a registration is updated in the mobile
node'-and provides no further analysis.”
• Finally, Dr. Nair alleges that ‘Verizon actively
induces its customers and end users (who use the Verizon LTE
Network) to infringe,' but no analysis of induced
infringement is present in the entirety of Dr. Nair's
report for the '417 Patent.”
• 330.1b: “Dr. Nair fails to provide any
analysis regarding whether any of the alleged wireless
network nodes that he has identified are
‘fixedly-located,' as required by all Asserted
• 330.1c: “Dr. Nair fails to provide any
allegations or analysis as to how the connection between the
mobile node and the wireless network nodes is
wireless. Rather than provide any analysis based on
documentary evidence, Dr. Nair makes conclusory allegations
and then jumps to conclusions, such as, wireless tests are
‘the most effective way to test a phone' and
therefore the mobile node is ‘configured to wirelessly
communicate with the wireless network nodes.' But nowhere
does Dr. Nair provide any analysis of a specific mobile node
being configured to wirelessly communicate with any specific
wireless network node, nor identify any accused equipment
that allegedly implements that wireless network node. Rather,
Dr. Nair generally alleges in the abstract, without support,
that unidentified mobile nodes are ‘configured to
wirelessly communicate with the [unidentified] wireless
network nodes.' This amounts to a bare recitation of the
claim language and should be stricken for failure to
adequately support his opinions.”
• 330.1d: Dr. Nair merely points to various uses of the
term ‘network emulator' in various documents. But,
again, Dr. Nair fails to examine how any of these references
to ‘network emulators' satisfy other limitations of
this element, including how those emulators might be
‘communicatively linked' to the wireless network
nodes, as required by the claim language. Indeed, for each
limitation, Dr. Nair fails to provide an analysis of how any
of the identified equipment is used in combination to form
the ‘system' that, as a whole, allegedly infringes
Claim 1. Rather, Dr. Nair's ‘analysis'
comprises scattershot references to the terms in the
limitations, without any discussion as to the relevance of
• 330.1e: “Dr. Nair again simply identifies
various pieces of equipment as the ‘controller'
without analysis. . . . Dr. Nair does not identify how or
whether the alleged controllers infringe the various
limitations of Element [330.1e], such as requiring that the
controller simulate mobile communication conditions
‘without changing operating parameters' of the
mobile node. Dr. Nair's conclusory allegations to the
contrary should be stricken.
(Dkt. #99) (internal citations omitted). Mobility Workx
counters with a brief, two-paragraph response which claims
that: (1) Verizon falsely claims that “‘both
parties agree Element [417.1a] is a limited preamble,
'” but “Mobility never agreed to that, and
the Court certainly has not construed it as limiting”;
(2) the “draft documented dated February 2019”
has been authenticated by Verizon's Rule 30(b)(6)
witness; (3) “Verizon fails to address the fact that
they are in possession of all 37 versions of this document
but have failed to produce any single verions of this
document in discovery . . .”; (4) Verizon “also
wrongly claim[s] that Dr. Nair makes an extreme
generalization based upon the supposedly inaccurate new
document when in fact Dr. Nair cited to it as an
example”; and (5) “[a]dditional argument with
respect to the merits of defendants motion [will] be provided
in connection with the opposition to the motion for summary
judgment with supporting declarations” (Dkt. #111).
outset, the Court notes that Verizon is correct that the
Local Rules state that “[t]he response and any briefing
shall be contained in one document . . . A party's
failure to oppose a motion in this manner prescribed herein
creates a presumption that the party does not controvert the
facts set out by movant and has no evidence to offer in
opposition to the motion” (Dkt. #117) (citing L.R.
CV-7(d)). With that being said, the Court has also already
noted that it must exercise its gatekeeping role and allow
for an equitable judicial proceeding. Verizon has not
persuaded the Court that Dr. Nair's opinions should be
forfeited in this case. Verizon's arguments are better
characterized as disputes over weight and credibility than
admissibility. See Wallis, 2014 WL 3809743, at *1.
If Dr. Nair's claims are as unsupported or conclusory as
Verizon claims, then “vigorous cross examination”
will reveal that. See Daubert 509 U.S. at 596.
Indeed, cross-examination, rather than exclusion, is more a
more appropriate means to establish the weight of the
evidence, for it is not the role of the Court to weigh the
strength of Dr. Nair's conclusions. See Primrose
Operating Co., 382 F.3d at 562 (5th Cir. 2004)
(“It is the role of the adversarial system, not the
court, to highlight weak evidence.”). Thus, the Court
finds that these disputes are better resolved by the jury and
accordingly denies Verizon's Motion.
Defendant's Motion to Strike the Expert Disclosure of Dr.
Sumi Helal and Dr. Edwin Hernandez (Dkt. #101);
Rule of Civil Procedure 26(a)(2)(B) states:
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared
and signed by the witness-if the witness is one retained or
specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly
involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
FED. R. CIV. P. 26(a)(2)(B) (emphasis added). Federal Rule of
Civil Procedure 26(a)(2)(C) states:
Witnesses Who Do Not Provide a Written Report.
Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence ...