Orthoflex, Inc. v. Thermotek, Inc.

• Decision Date: 10 December 2013
• Docket Number: Civil Action Nos. 3:11–CV–0870–D, 3:10–CV–2618–D.
• Citation: 986 F.Supp.2d 776
• Parties: ORTHOFLEX, INC. d/b/a/ Integrated Orthopedics, et al., Plaintiffs–Counterdefendants, v. THERMOTEK, INC., Defendant–Counterplaintiff–Third–Party Plaintiff, v. Mike Wilford, Consolidated Defendant, v. WMI Enterprises, LLC, et al., Third–Party Defendants.
• Court: U.S. District Court — Northern District of Texas

986 F.Supp.2d 776

ORTHOFLEX, INC. d/b/a/ Integrated Orthopedics, et al., Plaintiffs–Counterdefendants,

v.THERMOTEK, INC., Defendant–Counterplaintiff–Third–Party Plaintiff,

v.Mike Wilford, Consolidated Defendant,

v.WMI Enterprises, LLC, et al., Third–Party Defendants.

Civil Action Nos. 3:11–CV–0870–D, 3:10–CV–2618–D.

United States District Court,

N.D. Texas,

Dallas Division.

Nov. 20, 2013.

Ordered unsealed Dec. 10, 2013.

Keith V. Rockey, Avani C. Macaluso, Kathleen A. Lyons, Rockey & Lyons, Matthew L. De Preter, Rockey Depke & Lyons LLC, Chicago, IL, Charles W. Wirken, Gust Rosenfeld PLC, Phoenix, AZ, David A. Skeels, Glenn S. Orman, Friedman Suder & Cooke, Fort Worth, TX, for Plaintiffs–Counterdefendants.

Fred A. Smith, III, Sedgwick Detert Moran & Arnold, Chicago, IL, Christina Wade Perrone, Christopher M. McDowell, Martin E. Rose, Rose Walker LLP, Dallas, TX, Gary J. Cohen, Mesch Clark & Rothchild PC, Tucson, AZ, Matthew J. Kita, Dallas, TX, for Defendant–Counterplaintiff–Third–Party Plaintiff.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief Judge.

In this memorandum opinion and order, the court addresses seven motions to strike expert testimony.

I

As a result of the proceedings and rulings in these consolidated cases, the following claims remain for trial: (1) the claims of Motion Medical Technologies, LLC (“Motion Medical”), Wabash Medical Company, LLC (“Wabash Medical”), Mike Wilford (“Wilford”), Tri 3 Enterprises, LLC (“Tri 3”), and Orthoflex, Inc., d/b/a Integrated Orthopedics (“Orthoflex”) (collectively,“plaintiffs”) ¹ against ThermoTek, Inc. (“ThermoTek”) for breach of express warranty; (2) ThermoTek's counterclaim against Wilford for fraud; (3) ThermoTek's counterclaim-third-party claim against Motion Medical, Wabash Medical, and Tri 3 for breach of contract; (4) ThermoTek's third-party claim against Melissa Wojcik (“Wojcik”) for breach of contract; and (5) ThermoTek's counterclaim-third-party claim against Wilford, Wojcik, and Thermo Compression Solutions, LLC (“TCS, LLC”) for unfair competition.

The following motions are pending for decision: (1) ThermoTek's January 4, 2013 motion to strike expert testimony of Scott Yates (“Yates”); (2) ThermoTek's January 4, 2013 motion to strike portions of the expert testimony of William Durako (“Durako”); (3) ThermoTek's January 4, 2013 motion to strike portions of the expert testimony of Andre Vacroux (“Dr. Vacroux”); (4) ThermoTek's January 4, 2013 motion to strike expert testimony of David Venerus (“Dr. Venerus”); (5) plaintiffs' April 25, 2013 motion to strike portions of the proffered expert testimony of Karl Weisheit (“Weisheit”); (6) plaintiffs' May 1, 2013 motion to strike portions of the proffered expert testimony of Roch Shipley (“Dr. Shipley”); and (7) plaintiffs' May 1, 2013 motion to strike portions of the proffered expert testimony of Dr. Shipley in rebuttal to the claims of plaintiffs.

II

“The court decides these motions in its role as gatekeeper under Fed.R.Evid. 702.” SEC v. Cuban, 2013 WL 3809654, at *1 (N.D.Tex. July 23, 2013) (Fitzwater, C.J.) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)) (citation omitted). “The court may admit proffered expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable.” Nunn v. State Farm Mut. Auto. Ins. Co., 2010 WL 2540754, at *2 (N.D.Tex. June 22, 2010) (Fitzwater, C.J.) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

The first requirement is that the expert be qualified. “Before a district court may allow a witness to testify as an expert, it must be assured that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’ ” United States v. Cooks, 589 F.3d 173, 179 (5th Cir.2009) (quoting Rule 702). “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.” Id. (citing Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999)). “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009) (citation omitted).

The second requirement is that the expert's testimony be relevant. To be relevant, “expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Pipitone, 288 F.3d at 245 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). “Relevance depends upon ‘whether [the expert's] reasoning or methodology properly can be applied to the facts in issue.’ ” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir.2007) (quoting Daubert, 509 U.S. at 593, 113 S.Ct. 2786);see alsoRule 702(d) (requiring that “expert has reliably applied the principles and methods to the facts of the case”).

The third requirement is that the expert's testimony be reliable. “Reliability is determined by assessing ‘whether the reasoning or methodology underlying the testimony is scientifically valid.’ ” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786);see alsoRule 702(c) (requiring that “testimony [be] the product of reliable principles and methods”). Expert testimony “must constitute ‘more than subjective belief or unsupported speculation.’ ” Nunn, 2010 WL 2540754, at *2 (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). The court focuses on the expert's methodology, not the conclusions generated by it. Id. at *4 (citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir.1997)). If, however, “there is simply too great an analytical gap between the [basis for the expert opinion] and the opinion proffered,” the court may exclude the testimony as unreliable. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); see also Johnson v. Arkema, Inc., 685 F.3d 452, 460–61 (5th Cir.2012); Moore v. Ashland Chem. Inc., 151 F.3d 269, 278–79 (5th Cir.1998). This review is usually conducted by considering the five nonexclusive Daubert factors.² But these factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of [the] testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. 1167.

The burden is on the proponent of the expert testimony to establish its admissibility by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786;see also Johnson, 685 F.3d at 459. The court's inquiry is flexible in that “[t]he relevance and reliability of expert testimony turns upon its nature and the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir.2010) (citation omitted). “As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [trier of fact's] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.1987). “Vigorous 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.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786;Nunn, 2010 WL 2540754, at *5.

III

The court turns first to plaintiffs' May 1, 2013 motion to strike portions of the proffered expert testimony of Dr. Shipley.

A

Plaintiffs move to strike portions of Dr. Shipley's testimony offered in support of ThermoTek's claims for fraud and unfair competition. ThermoTek intends to offer Dr. Shipley's testimony concerning the similarities between Wilford's wraps and ThermoTek's wraps to prove that Wilford did not merely reverse engineer ThermoTek's products. In support of his ultimate conclusion, Dr. Shipley intends to testify that Wilford's and ThermoTek's wraps are substantially equivalent and that the similarities between the two products suggest that Wilford must have used information he obtained from ThermoTek to create the competitor product.

Plaintiffs challenge this testimony on several grounds. They contend that Dr. Shipley is not qualified to offer an opinion about whether the information allegedly disclosed by ThermoTek was “confidential” or “proprietary” because he does not have any special expertise in deciding whether something is confidential or proprietary. They maintain that Dr. Shipley's testimony about the similarities between Wilford's and ThermoTek's products is not relevant because whether the products are “ ‘substantially equivalent’ ... in the eyes of an ‘ordinary observer’ has no bearing on any issue [in this case].” Ps. 5/1/13 Br. Shipley 18. And assuming arguendo that his testimony is relevant, plaintiffs posit that the testimony is unreliable because Dr. Shipley focuses on the “functional aspects” of the product when the law requires that he focus on the “non-functional aspects.” Id. at 19–20. Finally, plaintiffs contend that Dr. Shipley is not qualified to opine about the equivalence of the products because he is not a medical doctor and the products at issue are medical devices.

B

In their briefing on the motions to strike, plaintiffs repeatedly misstate how the law applies to ThermoTek's claims. To prevail on its fraud claim against Wilford, ThermoTek must prove that (1) he made a material representation; (2) it was false when made; (3) he knew the representation was false, or he made it recklessly, without knowledge of its truth and as a positive assertion; (4) he made the representation with the intent that ThermoTek should act upon it; and (5) ThermoTek acted in reliance upon it and suffered...