FMC Corp. v. H & K MACH., INC.
| Decision Date | 01 August 1989 |
| Docket Number | No. 88-C-365.,88-C-365. |
| Citation | 718 F. Supp. 1403 |
| Parties | FMC CORPORATION, Plaintiff, v. H & K MACHINE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Krukowski & Costello by Kevin J. Kinney, Milwaukee, Wis., Niro, Scavone, Haller, Niro & Rockey, Ltd. by Raymond P. Niro and Robert Vitale, Chicago, Ill., for plaintiff.
Wheeler Law Firm by Allan B. Wheeler, Milwaukee, Wis., for defendant.
DECISION and ORDER
The litigants are competitors in the business of manufacturing and selling pea and bean harvesting machines. The plaintiff, FMC Corporation FMC, owns a patent on a pea and bean thresher. Patent No. 3,709,231. In this action, the plaintiff alleged that the threshing machine produced by the defendant, H & K Machine, Inc. H & K infringed its patent either literally or under the doctrine of substantial equivalents. After the jury found no infringement, judgment was entered in favor of the defendant. The plaintiff has moved for judgment notwithstanding the verdict and, alternatively, for a new trial. Both motions will be denied.
The standards to be applied in resolving a motion for judgment notwithstanding the verdict are as follows:
Whether there is substantial evidence to support the jury's verdict. Specifically, ... whether the evidence presented, combined with all reasonable inferences that can be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning it. La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1410 (7th Cir.1984). Any conflicts in the evidence must be resolved in favor of the party winning the verdict. Id. The district court does not judge the credibility of the witnesses. Freeman v. Franzen, 695 F.2d 485, 489 (7th Cir.1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983). While the district court does not reweigh the evidence as a jury would, it does "weigh the evidence to the extent of determining whether the evidence to support the verdict is substantial; a mere scintilla of evidence will not suffice." La Montagne, 750 F.2d at 1410.
McCalpine v. Foertsch, 870 F.2d 409, 414 (7th Cir.1989) (emphasis in original)
FMC's position is that it should be granted judgment notwithstanding the verdict because the evidence is not sufficient to support the jury's verdict. In its brief, FMC discusses the evidence and concludes that it requires a finding of literal infringement and, alternatively, a finding of infringement under the doctrine of equivalents.
The obvious flaw in FMC's analysis is that it usurps the jury's function of weighing the evidence. For instance, FMC first points to the deposition testimony of Mr. Wallace, the president of defendant, H & K, and highlights the fact that at the time of his deposition Mr. Wallace stated that there was support for the conclusion that the H & K thresher had a central beater; that position is inconsistent with Mr. Wallace's subsequent testimony at the trial. FMC then argues that this prior statement is entitled to "greater weight." (Plaintiff's brief p. 6). Such is not the law, nor was it the way the jury was instructed. The following instruction was submitted jointly by the parties and was given without modification:
The court is persuaded that with regard to each of the disputed aspects of the patent in suit substantial evidence was presented to support the jury's finding that no infringement occurred. For example, the evidence regarding the existence of a "generally centralized beater" consisted of testimony from Mr. Slates, an inventor, co-applicant of the patent and employee of FMC, and of testimony from Mr. Wallace, H & K's president. The respective briefs point to portions of the record where both witnesses address the issue of the "generally centralized beater." On direct examination, Mr. Slates said such beater existed, but on cross examination, Mr. Slates testified that H & K's main beater was not in the center. Mr. Wallace, called adversely, testified that there was support for the conclusion that the H & K machine had a generally centralized beater. When further examined by defense counsel, Mr. Wallace testified that, in engineering terms, he would not categorize H & K's main beater as generally centralized.
The same type of interplay of testimony exists as to the other points in dispute. After reviewing the comprehensive briefs and the trial transcript, the court finds that there is ample evidence to support the jury's verdict.
FMC also argues that it is entitled to judgment as a matter of law under the doctrine of equivalents. The plaintiff contends that the jury verdict must be in its favor because H & K failed to contradict the evidence of substantial equivalents.
The plaintiff's argument assumes, of course, that the jury found its evidence of substantial equivalents to be credible. The jury was instructed on assessing credibility and assigning weight to unrebutted evidence. The pertinent jury instruction stated:
You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's general motive, state of mind, demeanor and manner while on the stand. Consider the witness's ability to observe the matters to which he or she has testified and whether the witness impresses you as having an accurate recollection of those matters. If the testimony has not been rebutted or contradicted by anyone, you should take that into account in weighing the evidence.
The only evidence of substantial equivalence came from the plaintiff's witness, Mr. Slates. The jurors could have discredited his testimony because of his close connection to the patent and his allegiance to FMC. The jurors may well have found that the plaintiff failed to prove substantial equivalence by a preponderance of the evidence.
Alternatively, the plaintiff asserts that it is entitled to a new trial. "A new trial can only be granted when the jury's verdict is against the clear weight of the evidence." Wassell v. Adams, 865 F.2d 849, 854 (7th Cir.1989), quoting, Davlan v. Otis Elevator Co., 816 F.2d 287, 289 (7th Cir. 1987). A new trial may be warranted to prevent a miscarriage of justice. Cornelius v. LaCroix, 631 F.Supp. 610, 616 (E.D. Wis.1986), aff'd in part and rev'd in part, 838 F.2d 207 (7th Cir.1988).
FMC submits a two-pronged challenge: First, it asserts that the jury's verdict was contrary to the clear weight of the evidence; second, it argues that injustice occurred due to the court's method of presenting the instructions to the jury. As previously discussed, the jury's verdict was not contrary to the manifest weight of the evidence. That argument as well as the plaintiff's second argument is without merit.
The jury trial in the instant action commenced on Monday, May 22, 1989. The receipt of evidence was concluded at noon on Friday, May 26, 1989, the last working prior to the Memorial Day holiday weekend. Shortly after noon on Friday, the plaintiff's counsel expressed his desire that the case be given to the jury that afternoon. (Trial Tr. p. 616). Neither side requested an adjournment because of the impending three day weekend.
Both before and after the court's instructions were given to the jury, the court advised the jurors that if they had questions about the instructions, they were free to ask them. (Trial Tr. pp. 638 and 711) During the delivery of the instructions, the court inquired whether any juror was having difficulty hearing the instructions; not one affirmative response was received. (Trial Tr. p. 686) Additionally, not one question was posed to the court. At no time did the jurors request that the instructions, or portions of them, be provided to them in written form.
Notwithstanding the foregoing, the plaintiff has broadly attacked the court's method of instructing the jury. The plaintiff charges (1) that the instructions were too complex to be understood, absent a written copy; (2) that the instructions could not be followed or understood because the judge's voice dropped, and that the speed of delivery was too fast; (3) that the denial of plaintiff's request that a written set of instructions be provided the jury was unfair; (4) that the intervening three day weekend between the instructions and deliberations resulted in a miscarriage of justice; (5) that it was prejudicial error to condition the submission of the written instructions to the jury on the existence of a stipulation between the parties; and (6) that defense counsel's trial tactic of refusing to so stipulate was not in the interest of justice.
To support these arguments, the plaintiff has rolled out an arsenal of weapons. The plaintiff has submitted the affidavits of three of its attorneys, a chemical engineer and one of its trial witnesses in support of its position that the instructions could not be heard or understood. The plaintiff also has hired three communication experts to assess the complexity of the instructions. Each has offered an opinion that it would be difficult to remember and apply...
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FMC Corp. v. H & K Mach., Inc.
...the Eastern District of Wisconsin denying FMC Corporation's motions for judgment notwithstanding the verdict and for a new trial, 718 F.Supp. 1403 (1989), is affirmed. OPINION The district court did not abuse its discretion in refusing to grant a new trial either because of the manner in wh......