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LIQUID DYNAMICS CORPORATION v. VAUGHAN COMPANY

September 30, 2004.

LIQUID DYNAMICS CORPORATION, Plaintiff,
v.
VAUGHAN COMPANY, INC., Defendant.



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION & ORDER

Liquid Dynamics Corporation ("Liquid Dynamics") sues Vaughan Company, Inc. ("Vaughan") for infringement of U.S. Patent No. 5,458,414 ("the '414 patent") pursuant to 35 U.S.C. § 271 et seq. Liquid Dynamics sells a commercial mixing system called "JetMix." JetMix uses the invention described in the '414 patent to prevent settling and separation of liquid and solid components stored in slurry tanks. Liquid Dynamics claims Vaughan's competitive product, "RotaMix," uses mixing systems covered by the '414 patent. Vaughan counterclaims for invalidity and inequitable conduct. The court granted Vaughan's summary judgment motion on non-infringement of the '414 patent. Liquid Dynamics Corp. v. Vaughan Company, Inc., No. 01 C 6934, 2002 U.S. Dist. LEXIS 14102 (N.D. Ill. Jul. 31, 2002). The Federal Circuit reversed and remanded the case for trial. Liquid Dynamics Corp. v. Vaughan Company, Inc., 355 F.3d 1361 (Fed. Cir. 2004). Both parties move in limine to bar evidence at trial. DISCUSSION

I. Standard of Review

  Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for any purpose. See Hawthorne Partners v. AT&T Technologies, 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). Motions in limine are disfavored; admissibility questions should be ruled upon as they arise at trial. Id. Accordingly, if evidence is not clearly inadmissible, evidentiary rulings must be deferred until trial to allow questions of foundation, relevancy and prejudice to be resolved in context. Id. at 1401. Denial of a motion in limine does not indicate evidence contemplated by the motion will be admitted at trial. Instead, denial of the motion means the court cannot or should not determine whether the evidence in question should be excluded before trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

  II. Liquid Dynamics' Motions in Limine

  A. Limit Expert Testimony to Disclosed Opinions

  1. Liquid Dynamics' Arguments

  Liquid Dynamics moves in limine to exclude any expert testimony that is new and untimely disclosed. Specifically, Liquid Dynamics asserts that on May 1, 2002, the last day for disclosure of Rule 26(a)(2) rebuttal expert reports, Vaughan submitted a report signed by employees Glen Dorsch and Kent Keeran ("the Dorsch/Keeran report"). On June 10, 2002, the court struck Section III, a purported computational flow dynamics ("CFD") study on a system in Plymouth, Indiana and Section IV, a purported CFD study on another patent, as new and untimely expert opinion. Liquid Dynamics argues that all trial testimony pertaining to Sections III or IV of the Dorsch/Keeran report must be excluded. Liquid Dynamics further contends any new opinion testimony by Dorsch or Keeran regarding infringement or critiques of CFD simulations conducted by Liquid Dynamics' expert, Dr. Lueptow, beyond that disclosed in the original report should also be excluded. Finally, Liquid Dynamics asserts Vaughan should be limited to offering either Dorsch or Keeran to testify about the report in accordance with this court's standing order limiting each party to only one expert witness per subject.

  2. Vaughan's Arguments

  Vaughan responds that it does not intend to present expert testimony from both Dorsch and Keeran. However, Vaughan asserts both witnesses worked directly on the design, analysis and implementation of some or all of Vaughan's accused systems. Thus, both will likely be offered at trial for fact testimony. With respect to Sections III and IV of the report, Vaughan affirms it will not violate the court's order. However, Vaughan contends it originally submitted Sections III and IV in the event Liquid Dynamics' experts testify, despite the absence of any such opinions in their reports, that prior art did not generate a substantial helical flow. If Liquid Dynamics does not offer new testimony, Vaughan will not offer Sections III and IV barred by the court's order.

  3. Findings

  Fed.R. Civ. P. 26(a) requires disclosure of expert witnesses and their written reports. The rule provides, "these disclosures shall be made at the times and in the sequence directed by the court." Fed.R. Civ. P. 26(a)(2)(c). Failure to comply with Rule 26 precludes a party from using at trial expert testimony that was not timely or fully disclosed. Fed.R. Civ. P. 37(c)(1). The sanction of exclusion is mandatory and automatic unless the party can show its Rule 26(a) violation was either justified or harmless. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). The court previously struck Sections III and IV of the Dorsch/Keeran report as untimely disclosed expert opinion. The motion in limine to exclude any evidence or testimony relating to Sections III and IV of the Dorsch/Keeran report must be granted. Further, the motion in limine to exclude all new opinion testimony by Dorsch or Keeran regarding infringement or critiques of Lueptow's CFD simulations beyond that disclosed in the original Dorsch/Keeran report is granted. Finally, this court's "Standing Order Establishing Pretrial Procedure" limits each party to one expert witness per topic. Liquid Dynamics' motion to preclude Vaughan from presenting both Dorsch and Keeran as experts is moot in light of Vaughan's representation that it will not do so. The motion in limine to preclude both witnesses from testifying must be denied.

  B. Expert Testimony of Norcross and Bathija

  1. Liquid Dynamics' Arguments

  Liquid Dynamics seeks to exclude expert testimony by Prakash Bathija, who is on Vaughan's witness list. Liquid Dynamics asserts Bathija is the author of an article entitled "Jet Mixing." However, Bathija was not timely disclosed as an expert witness. The court is asked to limit his testimony to authentication of the article because any testimony beyond authentication would amount to expert opinion. Further, Liquid Dynamics seeks to exclude undisclosed expert opinion testimony from Ken Norcross, also on Vaughan's witness list. On July 18, 2002, the court struck Norcross' summary judgment declaration as untimely and inappropriate expert opinion not disclosed prior to April 1, 2002, the deadline for disclosure of expert reports. However, Liquid Dynamics is concerned Vaughan will elicit expert opinion from Norcross at trial under the guise of lay opinion.

  2. Vaughan's Arguments

  Norcross is a former vice-president and director of technology at U.S. Filter Jet-Tech. Vaughan asserts Norcross was identified well before the close of discovery as a witness having knowledge regarding prior art systems. Vaughan contends the court's July 18, 2002 order striking Norcross' declaration acknowledged Norcross' knowledge of certain prior art systems. Vaughan proposes to call Norcross as a lay witness having personal knowledge of prior art, but not as an expert witness. Vaughan assures the court Norcross' testimony is purely factual in nature and he will not be asked to opine on flow patterns. Finally, Vaughan indicates it will not call Bathija as a witness at trial.

  3. Findings

  Liquid Dynamics' motion regarding Bathija is moot in light of Vaughan's representation that Bathija will not be called to testify. As to Norcross, the July 18, 2002 order specifically ruled that Norcross' conclusory opinions in his summary judgment declaration regarding helical flow patterns of prior art mixing systems were "not lay witness opinion under Fed.R. Evid. 702. The '414 patent and purported prior art helical flow patterns have been the subject of expert testimony by both parties. The analysis of a system's flow patterns is based on technical and scientific data." Further, Norcross' summary judgment declaration lacked sufficient foundation to establish his opinions regarding the validity of the '414 patent and the mixing industry's prior use of the '414 patent's claims were based on personal knowledge. Accordingly, the court struck Norcross' inappropriate and untimely expert testimony. Contrary to Vaughan's assertions, the court did not rule that Norcross is knowledgeable regarding certain prior art systems. Rather, the court indicated four paragraphs of his declaration that explained U.S. Filter Jet-Tech documents were apparently based on personal knowledge.

  With proper foundation, lay opinion testimony may be admissible to assist the jury or court understand the factual issues. Stagman v. Ryan, 176 F.3d 986, 995-96 (7th Cir. 1999). However, Fed.R. Evid. 701 provides lay witnesses may not opine regarding scientific, technical or other specialized knowledge within the scope of Fed.R. Evid. 702. Lay opinion testimony is "not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events." U.S. v. Conn, 297 F.3d 548, 554 (7th Cir. 2002). The motion in limine regarding Norcross is granted in part. Norcross may not testify to the flow pattern information contained in his summary judgment declaration. With proper foundation evidencing personal knowledge, Norcross' testimony regarding prior art systems is not clearly inadmissible for all purposes. The extent to which Norcross may offer lay opinion testimony not based on scientific, technological or other specialized knowledge, however, is unclear. The court must reserve ruling on the admissibility of Norcross' lay opinion testimony until trial. The parties will not refer to Norcross' opinions in opening statements, through questioning witnesses, or otherwise in the jury's presence without prior court authorization.

  C. Expert Testimony of Breidenthal

  1. Liquid Dynamics' Arguments

  Liquid Dynamics seeks to exclude the testimony of Dr. Robert Breidenthal, an expert witness who submitted two reports on Vaughan's behalf and was deposed during discovery. Liquid Dynamics contends Breidenthal's opinions regarding patent validity and infringement should be barred because they are based on an improper claim construction rejected by the Federal Circuit. Liquid Dynamics argues Breidenthal's opinions are expressly based on an interpretation requiring the claim term "substantially helical" to conform to Figure 6 of the '414 patent. In contrast, the Federal Circuit construed the term "substantially helical" to encompass "all flow patterns that are generally, though not necessarily perfectly, spiral and that fill much, though not necessarily all, of the tank's volume." Liquid Dynamics, 355 F.3d at 1369. This construction expressly rejected any claim construction requiring the nearly perfect helix portrayed by Figure 6. The Federal Circuit held it is inappropriate to rely "on the written description of Figures 5 and 6 to import the limitation of a perfectly helical flow. There is no language in the claim requiring such a perfectly helical flow." Id. at 1368. ...


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