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LG Electronics v. Whirlpool Corp.

September 22, 2010

LG ELECTRONICS
v.
WHIRLPOOL CORP



Name of Assigned Judge or Magistrate Judge Amy J. St. Eve Sitting Judge if Other than Assigned Judge

DOCKET ENTRY TEXT

Whirlpool's motion in limine to preclude LG Electronics from introducing improper expert testimony and documents regarding wrinkle testing [441] is granted in part and granted in part without prejudice.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Whirlpool has moved in limine to preclude LG Electronics from introducing testimony regarding wrinkle testing through Whirlpool employee, Scot Lau. Whirlpool further seeks to preclude LG from questioning Glenn Clark about a specific e-mail regarding Whirlpool's testing methods. Whirlpool's motion is granted in part and granted in part without prejudice.

I. Scot Lau

Scot Lau is a lead engineer at Whirlpool in the Controls and Electronics group, and has worked at Whirlpool for over fifteen years. In his role, he "works on engineering projects, is responsible for mentoring other engineers when necessary, works on projects of an appropriate level, is responsible for -- depend -- depending on the type of project, product development, can be research, can be manufacturing." (Lau Dep at 5.) He also serves as a "Master Black Belt." In order to achieve this title, Mr. Lau had "formal work training through ... [Whirlpool's] Operational Excellence Program or OpEx Program.... [I]t's a program whereby engineers are put through a four-week training, one week per month for four months to learn statistics, experimentation, and critical thought, problem solving, and so on. And then at the end of that time frame, we work with a Master Black Belt -- Master Black Belt mentors to get certified." In order to obtain his Master Black Belt, Mr. Lau had to continue his training for an additional two years -- "one week a month for two years, to learn to become a Master Black Belt trainer." (Id. at 9-10.) In this role, Mr. Lau is "responsible for training other engineers in our OpEx statistical tools and teaching them in the use of statistical tools and analysis." (Id. at 10.) Mr. Lau trains other engineers "to run experiments more efficiently, and then to use statistical tools to help analyze those experiments." (Id.)

Courtroom Deputy KF Initials:

Lau attended Technical Design Previews (TDPs) related to controls and electronics for the Matador 2A, 2B control, which ultimately became the Duet Steam Dryer at issue in this Lanham Act case. (Id. at 14.) Lau examined data from the wrinkle testing performed on the Matador 2A or 2B. He conducted statistical analyses in connection with the TDPs and relevant data. (Id. at 18.) Based on his analysis, he made certain recommendations in connection with the dryers. He also reviewed other analyses.

II. Analysis

Whirlpool seeks to preclude LG from calling Scot Lau as a witness because Whirlpool claims that Lau is not qualified to give the expert opinions that LG intends to elicit. Whirlpool contends that Lau is an electrical engineer with no prior relevant experience in wrinkle tests. In response, LG asserts that Lau's testimony is lay testimony, not expert testimony, because it pertains to "personal knowledge he gained by virtue of his unique role in analyzing testing plans, data and related documentation." (R. 495, response at 1.) It further contends that it intends to offer Lau's testimony to establish that "the Whirlpool employee charged with statistical validation of wrinkle testing results determined that Whirlpool's cold mist feature (so-called 'steam') did not provide any wrinkle reduction benefits according to the test data he reviewed." (Id.) Further, it seeks to call Lau "for the purpose of showing that the highest level statistician[] at Whirlpool indicated [that he] found flaws in the testing, and that the introduction of a cold water mist in Whirlpool's dryers did not reduce wrinkles in the tests they analyzed." (Id. at 5-6.)

Under Rule 701, a lay witness may testify about his opinions or inferences that are:

(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

This subsection was added to Rule 701 to "eliminate the risk that the reliability requirements set forth in Rule 702 [would] be evaded through the simple expedient of proffering an expert in lay witness clothing." Advisory ...


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