Mar 13

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Court strikes expert for “parroting”

In Plantronics, Inc.v. ALIPH, Inc, ALIPH was successful in its bid to exclude the report of Plaintiff’s infringement expert in this case involving the fit of ear buds.  The Court found that the expert did very little analysis in order to conclude infringement:

“Professor Katz never conducted any quantitative analysis (i.e., size, measurements, dimensions, or positioning) of the earbuds, headsets, and ear molds he examined even though at oral argument, the parties agreed that a critical dispute in this action is whether the accused products are “dimensioned to contact an upper concha” as recited in asserted claim 10….Professor Katz also never even identified which particular ear molds — of the sixty ear molds on plaintiff’s Wall of Ears — he tested. His reliance on Exhibit 304, which contains the dimensions of the accused products, and his “visual examination” of the products do not suffice. In a declaration, he also admitted that the photographs in his report were to “illustrate the points” in his report and in deposition, he admitted counsel chose the photographs. He could not even identify which molds were depicted in the photographs.”

The ultimate “nail in the coffin” was the language of the expert report.  The Court highlighted how the report language was merely “parroting” Plaintiff’s claim:

“What justifies striking him at the end of the day is that his report merely parroting the claim language to find infringement will be unhelpful to the jury. Bald claim-ridden statements — with no analysis — that simply proclaim that defendants’ products infringe cannot help the jury in making their findings. FRE 702 permits expert testimony by a qualified expert using his scientific, technical, or other specialized knowledge to help the trier of fact understand the evidence or determine the facts in issue. Professor Katz’s ipse dixit statements in his report fail on this ground and thus his testimony is now disallowed.”

About the author

Renee Howdeshell

Renee Howdeshell is a founding member of Fulcrum Inquiry, an accounting, finance and economic consulting firm that performs damage analyses for commercial litigation, forensic accountings, royalty & distribution audits, financial investigations, and business valuations. Ms. Howdeshell holds a degree in Finance and Marketing from the University of Virginia's McIntire School of Commerce and is a Certified Public Accountant (CPA) and a Certified Fraud Examiner (CFE). She has testified as an expert witness in federal court, CA state court and arbitration regarding the results of her work. She can be reached at (213) 787-4112 and her resume is available at www.fulcrum.com.

Permanent link to this article: http://betweenthenumbers.net/2014/03/court-strikes-expert-for-parroting/

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