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Karl Storz Endoscopy-America, Inc. v. Stryker Corp.

United States District Court, N.D. California

March 30, 2018

STRYKER CORPORATION, et al., Defendants.


          JACQUELINE SCOTT CORLEY United States Magistrate Judge.

         Plaintiff Karl Storz Endoscopy-America (“KSEA”) alleges Defendants Stryker Corporation and Stryker Communications, Inc. (together, “Stryker”) infringes four KSEA patents. Now pending before the court is Stryker's motion to strike portions of KSEA's expert reports. (Dkt. No. 360.)[1] Having carefully reviewed the parties' briefing and having had the benefit of oral argument on March 29, 2018, the Court GRANTS in part and DENIES in part Stryker's motion.


         KSEA recently served five opening expert reports: Eric J. Gould Bear, Albert Juergens, Frank D'Amelio, Kurtis Keller, and Frank A. Bernatowicz. (Dkt. Nos. 359-7, 359-8, 359-9, 359-10, 360-6.) The deadline for the completion of expert discovery is April 12, 2018. (Dkt. No. 292 at 2.)


         Stryker requests the Court (1) strike the expert report of Eric J. Gould Bear and preclude Mr. Gould Bear from testifying, (2) strike new theories from the expert report of Albert Juergens that were not disclosed in KSEA's infringement contentions, (3) strike boilerplate statements about the doctrine of equivalents from the expert reports of Mr. D'Amelio, Mr. Keller, and Mr. Juergens and preclude KSEA from asserting infringement under the doctrine of equivalents, and (4) strike theories of damages from the report of Frank Bernatowicz based on products that KSEA did not accuse of infringement.

         At oral argument KSEA agreed that it will not rely upon: (1) the phrase “including multiple instances of each” from paragraph 213 of Mr. Juergens' expert report as to the “plurality of camera heads” limitation, (2) its experts' opinions regarding the doctrine of equivalents, and (3) Mr. Bernatowicz's projected damages calculations for products not accused of infringement. Therefore, Stryker's requests to strike these items from the expert reports are GRANTED. The Court shall proceed to review Stryker's remaining challenges: striking Mr. Gould Bear's report in its entirety and Mr. Juergens' report as to the “memory devices” limitation.

         1. Mr. Gould Bear's Report

         Stryker argues Mr. Gould Bear's opines in his expert report as to infringement of claim 3 of the ‘420 patent, but provides no analysis as required by the Federal Rules and therefore should be stricken in its entirety. Stryker also insists that Mr. Gould Bear should also be precluded from testifying about infringement.

         Under Rule 26(a)(2), a party must disclose, as directed by the court, its expert witnesses and a report that “contain[s] a complete statement of all opinions to be expressed and the basis and reasons therefor.” Rule 37, in turn, provides that if a party fails to provide the information required by Rule 26(a), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed.R.Civ.P. 37(c)(1); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”). The burden of proving an excuse is on the party facing sanctions. See Yeti, 259 F.3d at 1107.

         Mr. Gould Bear's report includes six sections: (1) introduction, (2) summary of conclusions, (3) background and qualifications, (4) materials reviewed, (5) legal principals and methods, and (6) conclusion. (Dkt. No. 360-6 at 3.) Mr. Gould Bear does not provide any analysis regarding how “the accused products literally include each element of Claims 1, 2 and 3 of the '420 Patent.” (Id. at 15 ¶ 35). Even Mr. Gould Bear's description of his process is conclusory: “I have analyzed literal infringement with respect to each limitation of the asserted patent claim, comparing the accused products - in their ordinary and intended uses - to the invention described in the patent claim they are alleged to infringe. When analyzing a dependent claim, I determined whether the allegedly infringing products include each and every element of the dependent claim, the independent claim from which it depends and all intermediate dependent claims.” (Id. at 14-15 ¶ 32.) Mr. Gould Bear fails to explain how he determined the allegedly infringing products include each element of the dependent claim. Instead, Mr. Gould Bear simply states that he “determined.”

         The only explanation Mr. Gould Bear provides is that he studied the materials identified in section four “materials reviewed” and performed the “analysis described herein” measured against the standards in section five, “legal principals and methods.” While Mr. Gould Bear cites to specific items for materials reviewed and legal principals and methods, he fails to reference where the reader can find his “analysis described herein.” After a complete review of Mr. Gould Bear's report the Court concludes Mr. Gould Bear has not provided the basis and reasons for his expert opinions regarding the alleged infringement of the asserted claim of the ‘420 patent.

         KSEA argues Mr. Gould Bear “considered dozens of public and confidential documents regarding the accused Stryker product and KSEA's patented user interface” as well as KSEA's infringement contentions and the documents Stryker identified as providing the most accurate description of its product. However, the review of certain documents does not meet the requirement under Rule 26 to describe the “reasons and basis” for his expert opinion.

         Next, KSEA argues Mr. Gould Bear “compared the accused products with the claim that KSEA asserts is infringed, as a person of skill in the art at the time of the invention would understand the meaning of the patent claims” by following a set of rules outlined in his report. This, however, is a description of Mr. ...

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