United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the court on the defendants' joint motions to exclude the opinions of Melissa Bennis, Filing No. 416, and of Paul Strykowski and Garry Busboom, Filing No. 354. This is an action for patent infringement. This court has jurisdiction under 28 U.S.C. § § 1331, 1332(a)(1) and 1338(a).
Relevant facts are set forth in the court's earlier orders and need not be repeated here. This action involves a patent for an improved lawn mower structured in a certain way. The invention is a side discharge mower with front and rear baffles within the mower deck that direct the flow of air and grass clippings from one cutting chamber into the path of the next cutting chamber. Filing No. 1, Ex. A, '863 patent at 4:37-64, 6:32-39, 8:1-14. Exmark alleges that Briggs and Schiller have infringed claims 1, 2, 6, and 7 of the subject patent. It is seeking reasonable royalty damages for that infringement.
Melissa Bennis is the plaintiff's damages expert. She has prepared a reasonable royalty opinion and analysis. Defendants move to exclude Bennis's opinions, arguing that she does not correctly apply the Entire Market Value Rule ("EMVR") and she fails to apportion between patented and non-patented features of the accused lawn mowers.
Defendants also move to exclude the opinions and testimony of Paul Strykowski (a professor of mechanical engineering with a focus on fluid mechanics) and Garry Busboom (the inventor). They argue that the experts are not qualified and their testimony is unreliable because they are not based on objective standards but simply personal views. Also, they contend Strykowski is not a person of ordinary skill in the art of lawn-mower design. Defendants also argue that if the both experts are found qualified and reliable, Exmark can only rely on one of them because their testimony would be needlessly cumulative.
Melissa Bennis is a Principal at Davis & Hosfield Consulting LLC, a firm that specializes in financial consulting within the litigation and dispute resolution process. Filing No. 461-1, Ex. 1, expert report and Disclosure of Melissa A. Bennis. She has a Bachelor of Science degree in Finance with Honors from the University of Illinois at Urbana-Champaign and a Masters of Business Administration degree with majors in Accounting, Marketing, and Management and Strategy from the Kellogg School of Management, Northwestern University. Id. She is also a licensed Certified Public Accountant and a member of the American Institute of Certified Public Accountants, the Illinois CPA Society, the American Bar Association, and the Licensing Executives Society. Id.
Bennis's opinion is based on a hypothetical negotiation, constructed using the Georgia-Pacific factors and additional factors that the hypothetical negotiators would have considered. See Id. at 21-57. Bennis considered settlement agreements as part of her analysis. Id. at 33. She used the entire mower as the royalty base. Id. at 118-119. She attempted to take into account all of the different factors. Id. at 208. She stated the royalty was structured as a percentage of sales, intended to have variability depending on the overall price of the mower. Id. at 213. She based her calculation on the understanding that the patented flow control baffle allows the mower to provide a quality of cut that is desired and demanded by the marketplace. Id. at 251; see also Filing No. 419-2, Bennis Report at 54 (stating "the quality of cut is paramount to selling mowers."); Filing No. 419-3, Ex. 2, Deposition of Melissa A. Bennis at 23. In her report, she acknowledged that "[o]ther elements also affect sales and profits of mowers, " noting that deck performance and maintenance are factors, as well as brand and dealer support, warranty and durability, a distribution dealer network, productivity, performance, and brand position. Filing No. 419, Ex. 2, Bennis Report at 54. She also acknowledged that Schiller and Briggs have patents on certain other elements of their mowers that "do not relate to the quality of the cut provided by the mower." Id. Briggs' own damages expert, like Bennis, uses the entire accused lawn mowers as a base for his own damages analysis. Filing No. 461, Ex. 2, Expert Report of John R. Bone at 58.
Paul Strykowski, Ph.D. is a Professor of Mechanical Engineering at the University of Minnesota who specializes in the study of fluid mechanics or flow analysis. (Filing No. 408, Ex. 5, Strykowski Report, Amended Ex. V, Curriculum Vitae; Ex. 7, Updated Strykowski Report at 53-55.) He earned his B.S. in mechanical engineering at the University of Wisconsin in 1982, and two Masters Degrees (1983 and 1985) and a Ph.D. (1986) in mechanical engineering from Yale. Id. Dr. Strykowski's research specialty is fluid mechanics, described in his curriculum vitae as the "fundamental physics and applied fluid mechanics of non-reacting and reacting flows." Id.
Dr. Strykowski has submitted his opinion on the issue of infringement of the 863 patent. Id., Ex. 7, Strykowski Report. In his report, Dr. Strykowski describes the function and benefits of the baffle system described in the 863 patent and explains the need in a mower deck "to create airflow under the deck that is conducive for the effective transport of clippings across the lateral extent of the deck to the discharge opening." Id. at 3-4. Dr. Strykowski also issued an expert report on the validity of the 863 patent. See id., Ex. 3. In his validity report, he addresses the defendants' assertion that the 863 patent is not entitled to the priority date of the original 1995 patent application. Id. at 11-12. He also concludes that the 863 patent is neither anticipated nor obvious over the prior art. Id. at 34-117.
Garry Busboom is one of the inventors of the 863 patent. Filing No. 408-2, Deposition of Garry Busboom ("Busboom Dep.") at 24-25. He is employed as Chief Development Engineer at Exmark and has worked there since 1985. Id. at 15. He is an engineer with 30 years' experience in the lawn mower industry. Id. at 15-19. Defendants concede that he is a person of ordinary skill in the field of the invention. See Filing No. 360, Defendant's Brief at 1. In his Report, Mr. Busboom states his opinion that Schiller's and Briggs' accused products infringe the 863 patent. Filing No. 408-11, Ex. 18, Updated Report of Garry Busboom at 5-17, 21-56 (expressing opinions that (1) the 863 patent is entitled to the priority date of the original 1995 application; (2) the claim term "adjacent" is not indefinite; (3) the claim term "elongated and substantially straight baffle portion" is not indefinite; and (4) the 863 patent is not anticipated by or obvious in view of the prior art); see Filing No. 408-12, Ex. 19, Updated Rebuttal Expert Report of Garry Busboom on Validity at 7.
Defendant Briggs's expert, Denis Del Ponte, has a B.S. in Mechanical Engineering from the University of Wisconsin. Filing No. 408-13, Ex. 20, Del Ponte Expert report at 6. He has been employed as a product designer, project engineer, and manager at John Deere since 1974. Id. at 6-7. Defendant Schiller's expert, Frank J. Fronczak, is a Professor at the University of Wisconsin-Madison in the Mechanical Engineering and the Biomedical Engineering Departments. Filing No. 410-9, Ex. 21, Expert Report of Frank J. Fronczak at 3. He has a Doctor of Engineering ("Dr. Eng.") degree in Engineering Design from the University of Kansas, an M.S. degree in Theoretical and Applied Mechanics from the University of Illinois-Urbana, and a B.S. degree in General Engineering from the University of Illinois-Urbana. Id. at 4.
The admissibility of expert testimony is governed by the Federal Rules of Evidence and the principles laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The district court's "gatekeeping obligation" applies to all types of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Federal Rule of Evidence 702 governs the admissibility of expert testimony and requires that: "(1) the evidence must be based on scientific, technical or other specialized knowledge that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the witness must have sufficient expertise to assist the trier of fact; and (3) the evidence must be reliable or trustworthy." Kudabeck ...