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Sloan Valve Co. v. Zurn Industries, Inc.

United States District Court, Seventh Circuit

October 15, 2013



AMY J. ST. EVE, District Judge.

Zurn Industries, Inc. ("Zurn") has moved to exclude the testimony of Sloan Valve Company's ("Sloan") expert, Julius Ballanco. For the reasons discussed below, the Court grants the motion in part without objection, grants the motion in part, and denies the motion in part.


This is a patent infringement case involving U.S. Patent No. 7, 607, 635, entitled Flush Valve Handle Assembly Proving Dual Mode Operation (the " Wilson patent"). The Wilson 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." (R. 314-1, Wilson patent, col.1, II. 6-10.) It provides 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. ( Id., col. 1, II 11-19, col.2, II. 27-33.)

Cross sectional representations of the preferred embodiment of the invention are reproduced below for reference. These figures show the handle (38), bushing (68), and plunger shank (80) for both a full flush (Figure 5) and for a reduced flush (Figure 6). ( See id., col. 3, 11. 15-20.)

As depicted in Figure 5, in the full flush mode, the user pushes the handle (38) down, which causes the plunger shank (80) to slide along the horizontal main axis (A) and hit the relief valve stem at a location (108) that results in a full flush volume. ( See id., col. 5, 11, 9-19.) As shown in Figure 6, in the reduced-volume flush mode, the user pulls the handle up, which causes the plunger shank (80) to tilt and slide along an angled axis (B), as compared to the horizontal axis, and hit the relief valve stem at a lower contact point (110). This results in a reduced opening of the relief valve, and thus a reduced volume of water. ( See id., col. 5, 11, 19-34.)

On January 28, 2013, Sloan served the first Expert Report of Julius Ballanco ("Ballanco I"). (R. 554-1, Ballanco I.) Mr. Ballanco intends to offer testimony regarding the alleged infringement of the 635 Patent by the accused products. ( Id. at 5.) Mr. Ballanco opines that Zurn directly and indirectly infringes claims 1, 4-8, 10-12, 14, 19, 29-31 and 33-34 of the Wilson patent. Mr. Ballanco conducted an element-by-element analysis of the asserted claims as compared to Zurn's accused products. Mr. Ballanco also offers opinions regarding price erosion.

In reaching some of his opinions in Ballanco I, Mr. Ballanco relied on certain test data generated by John Gregor[1] at Made to Measure (the "Gregor Report"). Made to Measure prepared CAD animations to reflect the travel of the plunger of the Zurn handle. Made to Measure also provided positional coordinate data of the midpoint of the plunger in a spreadsheet form. Because this data was inaccurate, Made to Measure re-ran the CAD animations and the positional coordinate data. Mr. Bley reflected this new data in his report (the "Bley Report").

On April 5, 2013, Sloan served Zurn with a second expert report from Mr. Ballanco ("Ballanco II"). In Ballanco II, Mr. Ballanco relied on the new, second set of test data set forth in the Bley Report. During his deposition on May 8, 2013, even Mr. Ballanco disavowed the CAD data upon which he had relied for certain opinions in Ballanco I and instead relied on the Bley Report data.


"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 whether the expert testimony is both relevant and reliable prior to its admission at trial. See id.; Power Integrations, Inc. v. Fairchild Semiconductor Intern., Inc., 711 F.3d 1348, 1373 (Fed. Cir. 2013); United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) ("To determine reliability, the court should consider the proposed expert's full range of experience and training, as well as the methodology used to arrive [at] a particular conclusion."). In doing so, courts "make the following inquiries before admitting expert testimony: first, the expert must be qualified as an expert by knowledge, skill, experience, training, or education; second, the proposed expert 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 Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 765 (7th Cir. 2013); Power Integrations, 711 F.3d at 1373; Pansier, 576 F.3d at 737.

An expert may be qualified to render opinions based on experience alone. See 2000 Advisory Committee Notes to Rule 702. "[T]he text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not the sole basis for a great deal of reliable expert testimony." Id. In addition, the Committee Notes add:

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply "taking the expert's word for it."

( Id. )

The Seventh Circuit has repeatedly stated that "genuine expertise may be based on experience or training." United States v. Conn, 297 F.3d 548, 556 (7th Cir. 2002) (quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996)). "[W]hile extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Trustees of Chicago Painters & Decorators Pension, Health & Welfare, & Deferred Sav. Plan Trust Funds v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations omitted). As such, courts "consider a proposed expert's full range of practical experience, as well as academic or technical training, when determining whether that expert is qualified to render an opinion in a given area." Id. (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)).

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)). See also Stollings, 725 F.3d at 765. "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. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "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).


Zurn seeks to exclude the testimony of Mr. Ballanco on three grounds. First, Zurn asks the Court to preclude Mr. Ballanco from testifying about his analysis of the "old" CAD model prepared by Made To Measure. Sloan does not object to this aspect of the motion because it does not intend to elicit any testimony from Mr. Ballanco regarding the old model. Second, Zurn seeks to exclude Mr. Ballanco's infringement analysis because it contends that Mr. Ballanco used a claim construction inconsistent with the Court's prior construction. Third, Zurn challenges one aspect of Mr. Ballanco's testimony relating to ...

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