Sloan Valve Co. v. Zurn Indus., Inc.
| Decision Date | 18 November 2013 |
| Docket Number | Case No. 10-cv-00204 |
| Parties | SLOAN VALVE COMPANY, Plaintiff, v. ZURN INDUSTRIES, INC., and ZURN INDUSTRIES, LLC, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
AMY J. ST. EVE, District Court Judge:
Plaintiff Sloan Valve Company ("Sloan") has moved to strike portions of the expert reports of Richard S. Magee and to exclude his corresponding testimony. For the reasons discussed below, Plaintiff's motion is granted in part and denied in part as moot.
This is a patent infringement case involving U.S. Patent No. 7,607,635, entitled "Flush Valve Handle Assembly Providing Dual Mode Operation" (the "'635 Patent"). The '635 Patent "relates to flush valves for use with plumbing fixtures such as toilets, and more specifically to improvements in the bushing of the actuating handle assembly that will provide for user-selectable, dual mode operation of the flush valve." The improvement is a mechanism that allows a user to select one of two flush volumes based on the direction of actuation of the handle: a full flush volume to evacuate solid waste from the bowl or a reduced flush volume to remove liquid waste.
Sloan filed this lawsuit against Zurn Industries, Inc.'s and Zurn Industries, LLC ("Zurn") alleging infringement. Zurn has asserted various counterclaims and defenses against Sloan, including invalidity and non-infringement. During expert discovery, Zurn disclosed Dr. Richard S. Magee as its technical expert on the issue of non-infringement and invalidity. Sloan now seeks to strike Dr. Magee's January 24, 2013 initial invalidity report and his April 5, 2013 reply report on invalidity. Sloan's primary argument is that Dr. Magee is not a person of ordinary skill in the art and thus cannot opine on what such a person would have known or considered regarding the '635 patent.
"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)." Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Rule 702 provides, in relevant part, that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact[,] . . . a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion. . . ." Id. See also Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010).
Under the expert-testimony framework, courts perform the gatekeeping function of determining prior to admission whether the expert testimony is both relevant and reliable. See id.; United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (). See also Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013). In doing so, courts "make the following inquiries before admitting expert testimony: First, the expert must be qualified as an expert byknowledge, skill, experience, training, or education; second, the proposed expert testimony must assist the trier of fact in determining a relevant fact at issue in the case; third, the expert's testimony must be based on sufficient facts or data and reliable principles and methods; and fourth, the expert must have reliably applied the principles and methods to the facts of the case." Lees v. Carthage College, 714 F.3d 516, 521-22 (7th Cir. 2013); see also Pansier, 576 F.3d at 737.
In Daubert, the Supreme Court offered the following non-exclusive factors to aid courts in determining whether a particular expert opinion is grounded in a reliable scientific methodology: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the theory has a known or potential rate of error; and (4) whether the relevant scientific community has accepted the theory. See Happel, 602 F.3d at 824; Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007). Further, the 2000 Advisory Committee's Notes to Rule 702 list the following additional factors for gauging an expert's reliability: (1) whether the testimony relates to "matters growing naturally and directly out of research . . . conducted independent of the litigation"; (2) "[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion"; (3) "[w]hether the expert has adequately accounted for obvious alternative explanations"; (4) "[w]hether the expert is being as careful as he would be in his regular professional work outside paid litigation consulting"; and (5) "[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give." Id. (internal quotations omitted); see also American Honda Motor Co. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010). "[B]ecause there are 'many different kinds of experts, and many different kinds of expertise,' the reliability analysis should be geared toward the precise sort of testimony at issueand not any fixed evaluative factors." Lees, 714 F.3d at 521, (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167 (1999)). See also Deputy v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003) (); Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608 n.4 (7th Cir. 2000) () (quotations omitted).
In assessing the admissibility of an expert's testimony, the Court's focus "must be solely on principles and methodology, not on the conclusions they generate.'" Winters, 498 F.3d at 742 (quoting Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). "The goal of Daubert is to assure that experts employ the same 'intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire, 526 U.S. at 152). "A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012).
Sloan seeks to preclude Dr. Magee's invalidity opinions that depend on what a person of ordinary skill in the relevant art would have considered obvious in 2005 or what such a person would have understood from reading the patent at issue. Sloan contends that Dr. Magee is not a person of ordinary skill in the art and thus is not qualified to testify as to what such a person would have understood from reading the patent. Specifically, Sloan asks the Court to: 1) find that Dr. Magee is not a person of ordinary skill in the plumbing flush valve art; 2) strike Dr. Magee's definition of a person of ordinary skill in the art; 3) strike Dr. Magee's obviousnessopinions; 4) strike Dr. Magee's best mode opinions; and 5) strike Dr. Magee's enablement and written description opinions.
Dr. Magee received his B.E., M.S., and his doctoral degree in mechanical engineering from Stevens Institute of Technology. He currently is a research professor in the Center for Environmental Systems at Stevens Institute of Technology in Hoboken, New Jersey. In addition, Dr. Magee consults for the New Jersey Department of Environmental Protection and for the Department of Defense and United States Army on the assessment of performance claims on innovative environmental and energy technologies. Dr. Magee is also the Technical Director of the New Jersey Corporation for Advanced Technology, a not-for-profit partnership designed to develop, verify and commercialize emerging, innovative environmental and energy technologies. Dr. Magee's "fields of major interest" include "incineration, destruction of chemical weapons, combustion, heat transfer, fire safety, and fire investigation." (R. 546-10, Magee CV.)
Dr. Magee has experience in both mechanical engineering and fluid dynamics. He is a fellow with the American Society of Mechanical Engineers, a licensed professional engineer in the State of New Jersey, and a board certified environmental engineer. Dr. Magee has published extensively in the area of fire safety and the disposal of chemical weapons, and has given numerous presentations in both of these areas. (See R. 546-10, Magee CV.)
In providing his opinions in this case, Dr. Magee worked with Tsan-Liang Su, Ph.D., the Director of Laboratory Operations at Stevens Institute of Technology, who operates a laboratory certified to test manual flush valves. Sloan does not dispute that Dr. Su has experience in flush valves. Dr. Magee, in consultation with Dr. Su, studied flush valves and their handle assemblies, including prior art handles and the Sloan Uppercut handle.
Dr. Magee submitted two reports that are the subject of this motion. First, he disclosed an initial invalidity report, dated January 24, 2013 (the "Invalidity Report"). Second, he submitted a reply report on invalidity, dated April 5, 2013 (the "Reply Report"). In both reports, Dr. Magee opines on various issues pertaining to invalidity of the Wilson patent and on the standard for a person of ordinary skill in the art.
Dr. Magee defined one of ordinary skill in this art regarding the '635 patent "to be one with a Bachelor's of Engineering with a concentration in Mechanical Engineering or an equivalent degree, and experience in designing and/or analyzing mechanical/fluid systems." (R. 546-10 at 15.) Based on this definition, Dr. Magee gave various opinions regarding invalidity that incorporate the...
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