Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 1 of 14 PageID #: 29545
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.,
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`Plaintiff,
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`v.
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`CATERPILLAR, INC.,
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`Defendant.
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`Case No. 1:17-cv-00770-JDW-MPT
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`MEMORANDUM
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`In this patent litigation, Wirtgen America, Inc. and Caterpillar, Inc. seek to exclude
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`certain expert testimony before trial. I’ll exclude the testimony of Caterpillar’s ITC expert
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`because his opinion wouldn’t help the jury in determining willfulness and one of Wirtgen’s
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`experts whose doctrine of equivalents theory is conclusory and therefore unreliable.
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`I.
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`LEGAL STANDARD
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`Regional circuit law governs aspects of expert opinion admissibility, unless the
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`issues are unique to patent law. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1390
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`(Fed. Cir. 2003). A district court has wide discretion in determining whether to admit expert
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`testimony. See Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008). Federal Rule of
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`Evidence 702 provides that a qualified expert may testify in the form of an opinion if: “(a)
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`the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
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`to understand the evidence or to determine a fact in issue; (b) the testimony is based on
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.,
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`Plaintiff,
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`v.
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`CATERPILLAR, INC.,
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`
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`Defendant.
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`Case No. 1:17-cv-00770-JDW-MPT
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`
`
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`
`
`
`
`
`
`MEMORANDUM
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`In this patent litigation, Wirtgen America, Inc. and Caterpillar, Inc. seek to exclude
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`certain expert testimony before trial. I’ll exclude the testimony of Caterpillar’s ITC expert
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`because his opinion wouldn’t help the jury in determining willfulness and one of Wirtgen’s
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`experts whose doctrine of equivalents theory is conclusory and therefore unreliable.
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`I.
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`LEGAL STANDARD
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`Regional circuit law governs aspects of expert opinion admissibility, unless the
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`issues are unique to patent law. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1390
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`(Fed. Cir. 2003). A district court has wide discretion in determining whether to admit expert
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`testimony. See Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008). Federal Rule of
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`Evidence 702 provides that a qualified expert may testify in the form of an opinion if: “(a)
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`the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
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`to understand the evidence or to determine a fact in issue; (b) the testimony is based on
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 2 of 14 PageID #: 29546
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`sufficient facts or data; (c) the testimony is the product of reliable principles and methods;
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`and (d) the expert has reliably applied the principles and methods to the facts of the case.”
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`FED. R. EVID. 702. Rule 702’s requirements establish “three distinct substantive restrictions
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`on the admission of expert testimony: qualifications, reliability, and fit.” Elcock v. Kmart
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`Corp., 233 F.3d 734, 741 (3d Cir. 2000).
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`Regarding the reliability requirement, Rule 702 mandates that the relevant expert
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`testimony “must be supported by appropriate validation—i.e., ‘good grounds,’ based on
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`what is known.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993); see also
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`Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). “While ‘the
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`focus, of course, must be solely on principles and methodology, not on the conclusions
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`that they generate,’ … a district court must examine the expert's conclusions in order to
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`determine whether they could reliably follow from the facts known to the expert and the
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`methodology used.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999) (quoting
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`Daubert, 509 U.S. at 595). When there’s “too great a gap between the data and the opinion
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`proffered[,]” a court may conclude that the expert testimony isn’t reliable. Oddi v. Ford
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`Motor Co., 234 F.3d 136, 146 (3d Cir. 2000).
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`As to fit, the expert testimony should assist the trier of fact in determining a fact in
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`issue. See Daubert, 509 U.S. at 591. The expert’s opinion must relate to a “pertinent
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`inquiry” of the case. Id. Otherwise, that testimony “is not relevant and, ergo, non-helpful.”
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`2
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 3 of 14 PageID #: 29547
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`Id. (citation omitted). While the standard for “fit” is “not that high[,]” the bar is “higher
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`than bare relevance.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).
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`The party offering the expert's opinion bears the burden of proving that it meets
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`Rule 702’s restrictions. See id. at 744. While the party must make more than a prima facie
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`showing that an expert's methodology is reliable, “[t]he evidentiary requirement of
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`reliability is lower than the merits standard of correctness.” Pineda, 520 F.3d at 247. Rule
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`702 “has a liberal policy of admissibility.” Id. at 243 (quoting Kannankeril v. Terminix Int'l,
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`Inc., 128 F.3d 802, 806 (3d Cir. 1997)).
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`II.
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`ANALYSIS
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`Contemporaneous with their cross-motions for summary judgment, the Parties
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`filed Daubert motions. (See D.I. 210, 217.) Wirtgen moves to exclude a single expert,
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`Paul Bartkowski. Caterpillar moves to exclude various aspects of multiple experts’
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`opinions. As the Parties did in their briefs, I will address Mr. Bartkowski first and then the
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`categories of information that Caterpillar seeks to exclude.1
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`A.
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`Paul Bartkowski
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`On July 19, 2017, Wirtgen filed a complaint with the ITC, claiming infringement of
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`five of the twelve patents in Wirtgen’s initial complaint in this case. The ITC found
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`infringement for three patents and issued a limited exclusion order, which the Federal
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`1 Caterpillar has moved to exclude the testimony of Wirtgen’s damages expert, Dr.
`Pallavi Seth. I have scheduled a hearing on that aspect of the Motion and will rule after
`that hearing. I therefore do not address Dr. Seth’s testimony in this Memorandum.
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`3
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 4 of 14 PageID #: 29548
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`Circuit affirmed in part. See Caterpillar Prodotti Stradali S.R.L. v. Int'l Trade Comm'n, 847
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`Fed. App'x 893, 894 (Fed. Cir. 2021) (affirming infringement findings for the ’530 and
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`‘309 Patents).2 On remand, the ITC issued a modified exclusion order to include the ‘641
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`Patent.3
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`Caterpillar offers Mr. Bartkowski to opine on how the ITC works and the ITC
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`litigation between Wirtgen and Caterpillar, including their respective claims and
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`defenses. In explaining the ITC proceedings to the jury, he will opine that Caterpillar’s
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`defense before the ITC was “not without merit.” (D.I. 229-23 at ¶ 183.) He reaches that
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`conclusion based on his assessment of the outcome of the various invalidity defenses
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`that Caterpillar offered in the ITC proceeding. He also opines that Caterpillar’s redesigns
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`are “indicative of a party that vigorously presented meritorious defenses to infringement
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`allegations (and infringement findings).” (Id. ¶ 200.)
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`Mr. Bartkowski’s testimony about the ITC proceedings doesn’t meet Daubert’s fit
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`requirement. See Daubert, 509 U.S. at 591. The prior litigation before the ITC is relevant
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`in a jury’s determination of willfulness because the jury will measure Caterpillar’s
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`culpability “against [its] knowledge … at the time of the challenged conduct.” Halo Elecs.,
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`Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 105 (2016). And Wirtgen accuses Caterpillar of
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`continuing to infringe on Wirtgen’s patents after it was put on notice of infringement
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`2 U.S. Patent Nos. 9,656,530, and 7,828,309, respectively.
`3 U.S. Patent No. 7,530,641.
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`4
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 5 of 14 PageID #: 29549
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`during the ITC litigation. While the ITC litigation is relevant, it doesn’t automatically follow
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`that Mr. Bartkowski’s opinion “will aid the jury in resolving a factual dispute.” Daubert, 509
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`U.S. at 591. The standard for “fit” is “higher than bare relevance.” In re Paoli R.R. Yard PCB
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`Litig., 35 F.3d at 745.
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`What matters for the jury is Caterpillar’s state of mind from a subjective (as
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`opposed to objective) standpoint. “[S]ubjective willfulness alone” can support an award
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`of enhanced damages. Arctic Cat Inc. v. Bombardier Recreational Prod. Inc., 876 F.3d 1350,
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`1371 (Fed. Cir. 2017) (citing Halo Elecs., Inc., 579 U.S. 93). The jury will need to evaluate if
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`Caterpillar “acted despite a risk of infringement that was either known or so obvious that
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`it should have been known to the accused infringer.” Id. (internal quotations omitted).
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`Mr. Bartkowski has no knowledge about Caterpillar’s subjective state of mind, nor
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`can an expert offer an opinion about a party’s subjective state of mind. See Shire
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`Viropharma Inc. v. CSL Behring LLC, No. CV 17-414, 2021 WL 1227097, at *5 (D. Del. Mar.
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`31, 2021). To the extent that Mr. Bartkowski intends to point to objective facts—like
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`Caterpillar prevailing on some arguments before the ITC—as evidence of its state of mind,
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`that’s nothing more than lawyer argument. It’s not expert analysis. Rules 702 and 703 do
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`not permit parties to cloak attorney argument in the guise of expert testimony.
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`And Caterpillar has not explained how Mr. Bartkowski’s summary of the procedures
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`before the ITC that led to the ITC’s decision will aid the jury in assessing Caterpillar’s state
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`of mind. Caterpillar cites to Atturo Tire Corp., but that case is distinguishable. In Atturo
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`5
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 6 of 14 PageID #: 29550
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`Tire Corp., a district judge permitted an expert in ITC litigation to testify about the ITC’s
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`procedures for terminating a respondent in an ITC investigation based on a settlement
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`agreement and whether those procedures were followed in a particular case. See Atturo
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`Tire Corp. v. Toyo Tire Corp., No. 14-CV-0206, 2021 WL 3814800, at *2 (N.D. Ill. Aug. 26,
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`2021). Unlike Mr. Bartkowski’s testimony, that expert’s opinion aided the jury in resolving
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`a fact at issue. The jury had to decide the merits of certain claims that arose from a party’s
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`alleged wrongful conduct in resolving an ITC investigation. Thus, an understanding of the
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`ITC’s idiosyncratic procedures would help the jury determine whether those procedures
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`were followed. Here, that’s not the jury’s task. I will therefore exclude Mr. Bartkowski’s
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`testimony.
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`B. Wirtgen’s Experts
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`Caterpillar seeks to exclude testimony from Drs. John Meyer, John Lumkes, and
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`Christopher Rahn in three different categories: (1) Wirtgen-branded machines practice
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`Wirtgen’s patents; (2) Caterpillar’s mental state; and (3) the doctrine of equivalents.
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`1. Whether Wirtgen-branded machines practice Wirtgen’s patents
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`Dr. Meyer intends to opine that Wirtgen’s machines practices claims of the ‘641
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`Patent, and Dr. Lumkes intends to opine that those machines practice claims of the ‘530
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`and ‘309 Patents. Caterpillar argues that neither disclosed the basis for his opinions in
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`his expert report and therefore seeks to exclude those opinions. (Caterpillar also seeks
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`6
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 7 of 14 PageID #: 29551
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`to preclude Dr. Rahn from offering similar opinions, but Wirtgen says he won’t do so, so
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`there’s nothing for me to resolve with respect to Dr. Rahn.)
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`Dr. Meyer. Dr. Meyer bases his opinion on analysis that he performed during the
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`ITC proceeding. In an appendix to his expert report, he cites his report from the ITC
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`proceeding among the materials he considered. There’s no dispute that Caterpillar has
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`Dr. Meyer’s expert report from the ITC proceeding. Wirtgen even re-produced it in this
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`case. To the extent his expert report in this case was not clear, Dr. Meyer clarified in his
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`deposition that he based his opinion in this case on his analysis and report in the ITC
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`proceeding. That’s sufficient to satisfy Rule 26 which requires that his report provide “a
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`complete statement of all opinions [he] will express and the basis and reasons for them.”
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`FED. R. CIV. P. 26(a)(2)(B)(i).
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`Dr. Lumkes. Unlike Dr. Meyer, Dr. Lumkes doesn’t disclose the basis of his opinion
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`about the Wirtgen-branded machines anywhere in his report. In its responsive brief,
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`Wirtgen references Dr. Lumkes’s prior work during the ITC litigation. But Wirtgen doesn’t
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`point me to where Dr. Lumkes cited that work in his expert report. Rule 26 requires that
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`Dr. Lumkes’s report list the basis for that opinion, or at least that he disclosed it to
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`Caterpillar somewhere along the way. See id.
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`While Dr. Lumkes didn’t comply with Rule 26, I won’t strike this portion of his
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`opinion. Caterpillar classifies its Motion as a Daubert motion, but because it’s asking me
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`to find a violation of Rule 26(a), I analyze this argument as a motion to strike under Rule
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`7
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 8 of 14 PageID #: 29552
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`37. Rule 37 bars the admission of information that a party didn’t disclose properly “unless
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`the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). When a party
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`seeks to strike untimely disclosed facts, witnesses, or opinions, a court will evaluate the
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`Pennypack factors. See Intervet, Inc. v. Mileutis Ltd., No. CV 15-1371 (ZNQ), 2023 WL
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`2266411, at *5 (D.N.J. Feb. 28, 2023). In this case, the issue isn’t that Wirtgen disclosed Dr.
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`Lumkes’s opinion in an untimely manner. Rather, it’s the absence of the basis for a portion
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`of his opinion in his timely expert report. Even so, I still find the Pennypack factors
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`instructive. Because striking critical evidence is an “extreme sanction,” my discretion to do
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`so isn’t unlimited. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 297 (3d Cir. 2012). Those
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`factors appropriately weigh the countervailing issues I must consider in determining if
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`Wirtgen’s failure was harmless.
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`Per Pennypack, I will consider the following factors: “(1) ‘the prejudice or surprise
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`in fact of the party against whom’ … the excluded evidence would have been offered; (2)
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`‘the ability of that party to cure the prejudice’; (3) the extent to which allowing such …
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`evidence would ‘disrupt the orderly and efficient trial of the case …’; (4) any ‘bad faith or
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`willfulness in failing to comply with the court’s order’; and (5) the importance of the
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`excluded evidence.” Id. at 298 (citation omitted). Analyzing the first two factors together,
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`Caterpillar wouldn’t have been surprised and there was ample opportunity to cure. That
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`the Wirtgen machines practice the asserted patents was a jurisdictional requirement for
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`the ITC to hear the prior case. Dr. Lumkes, in that litigation, opined as such. When
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`8
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 9 of 14 PageID #: 29553
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`Caterpillar received Dr. Lumkes’s opening report on May 18, 2023, it wasn’t shocking that
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`Dr. Lumkes reached the same conclusion. Dr. Lumkes didn’t cite the basis for that opinion,
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`but the omission wasn’t prejudicial to Caterpillar because Caterpillar had the opportunity
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`to and did depose Dr. Lumkes. See Withrow v. Spears, 967 F. Supp. 2d 982, 1005 (D. Del.
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`2013) (noting that the opportunity to depose an expert can cure prejudice). If Caterpillar
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`wanted to drill down on why or how Dr. Lumkes reached that conclusion, it had a chance
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`at the deposition to do so. The other factors also weigh against striking Dr. Lumkes’s
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`opinion. There’s no need to re-open discovery and delay the trial because Caterpillar had
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`Dr. Lumkes’s report when he was deposed. There’s no bad faith on Wirtgen’s part, and
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`this evidence is important because it impacts Wirtgen’s damages theory.
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`The purpose of Rule 26 is to prevent unfair surprise by the presentation of new
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`evidence. See EMC Corp. v. Pure Storage, Inc., 154 F. Supp. 3d 81, 92 (D. Del. 2016).
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`Nothing that Wirtgen is doing will be a surprise to Caterpillar, given the history between
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`the parties. Therefore, I won’t exclude Dr. Lumkes’s opinion that Wirtgen-branded
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`machines practice claims of the ‘530 and ‘309 Patents.
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`2.
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`Caterpillar’s mental state
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`Both Dr. Meyer and Dr. Lumkes point to evidence of Caterpillar copying features
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`of Wirtgen’s machines to bolster their respective conclusions that Wirtgen’s inventions
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`were not obvious. (See D.I. 213-8 at ¶ 189, D.I. 213-10 at ¶ 8.) An obviousness inquiry can
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`include an examination of secondary considerations, including commercial success. See
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`9
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 10 of 14 PageID #: 29554
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`MeadWestVaco Corp. v. Rexam Beuaty and Closures, Inc., 731 F.3d 1258, 1263-64 (Fed.
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`Cir. 2013). Courts permit experts to testify on obviousness or nonobviousness, including
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`secondary considerations. See, e.g., Boston Scientific Scimed, Inc. v. Cordis Corp., 554
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`F.3d 982, 985 (Fed. Cir. 2009) (noting that trial court permitted expert testimony on
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`secondary consideration of nonobviousness). Caterpillar hasn’t offered any reason why I
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`should prevent Drs. Meyer and Lumkes from doing the same.
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`The Parties’ briefing directed to these opinions is puzzling. Caterpillar argues that
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`Drs. Meyer and Lumkes cannot opine that Caterpillar copied Wirtgen’s products, and
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`Wirtgen defends their right to do so. They both frame the discussion in relation to
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`Wirtgen’s claim of willfulness. But from the excerpts of the experts’ reports, I don’t see
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`that either expert has disclosed an intent to offer such an opinion. It’s therefore not
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`clear to me that there’s any dispute for me to resolve. To the extent either expert
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`intends to go beyond what he’s disclosed in his expert report or to offer an opinion that
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`arguably goes beyond what Rule 702 requires, I can address it at trial.
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`3.
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`Doctrine of equivalents
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`Drs. Meyer, Lumkes, and Rahn each offer opinions to invoke the doctrine of
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`equivalents, suggesting that differences between Caterpillar’s machines and claims in
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`Wirtgen’s patents are insubstantial. Caterpillar contends that those expert opinions are
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`conclusory and thus unreliable. It’s proper to exclude expert testimony when there’s
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`“too great a gap between the data and the opinion proffered.” Oddi, 234 F.3d at 146.
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`10
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`“Expert reports must not contain mere conclusory opinions, but must include ‘how’ and
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`‘why’ the expert reached those particular conclusions.” Simpson v. Betteroads Asphalt
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`Corp., No. CIVIL 2011-056, 2013 WL 2255472, at *2 (D.V.I. May 18, 2013) (citation
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`omitted).
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`A product that doesn’t literally infringe a patent claim may still infringe under the
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`doctrine of equivalents if the differences between an element of the accused product
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`and a claim limitation are insubstantial. See Boehringer Ingelheim Vetmedica, Inc. v.
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`Schering-Plough Corp., 320 F.3d 1339, 1351 (Fed. Cir. 2003). A finding of infringement
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`under the doctrine of equivalents requires “a showing that the difference between the
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`claimed invention and the accused product … was insubstantial or that the accused
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`product … performs the substantially same function in substantially the same way with
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`substantially the same result as each claim limitation of the patented product ….”
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`AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1326 (Fed. Cir. 2007).
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`Dr. Lumkes. Dr. Lumkes opines that the differences between a track assembly and
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`a wheel are insubstantial because “[b]oth are used to move a machine, would be
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`connected to the hydraulic traction system in substantially the same way, and would be
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`connected to the [lifting] column in substantially the same way.” (DI. 213-10 at ¶ 144.)
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`He further opines that the “track assemblies … perform substantially the same function
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`(engage the ground surface) in substantially the same way (hydraulically powered to
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`rotate) to achieve substantially the same result (the machine moves) as a wheel.” (Id.)
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`11
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 12 of 14 PageID #: 29556
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`Neither his “insubstantial-difference” nor “function-way-result” opinion is conclusory.
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`Rather, Dr. Lumkes provides reasons why the differences aren’t meaningful. He also
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`specifies and describes a relevant function, way, and result. Given this, there’s enough to
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`draw a link between his conclusion and the data he used to get there. See Heller, 167
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`F.3d at 153.
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`Dr. Rahn. Dr. Rahn opines that the difference between a “single display indicating
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`the current actual values with selection buttons to set a value for an operating
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`parameter and (ii) two separate displays indicating the current actual values with section
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`buttons to set a value for an operating parameters” is insubstantial. (D.I. 213-12 at ¶
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`328.) That’s because showing information “on the left and right sides of a single display
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`provides substantially the same function as showing the same information on two
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`different displays” since an operator of either would be able to “visually observe the
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`respective parameters and manually change certain parameters.” (Id.) He offers similar
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`opinions concerning the similar function and result if there is a single ECM or two ECMs.
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`(See id. at ¶¶ 355-56.) Like Dr. Lumkes’s doctrine of equivalents opinion, Dr. Rahn
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`explains why he reaches the conclusion he does. So I can say that his opinion flows from
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`his analysis. See Oddi, 234 F.3d at 146.
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`Dr. Meyer. Unlike Drs. Lumkes and Rahn, Dr. Meyer offers only a conclusory
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`assertion about the applicability of the doctrine of equivalents. With respect to Claims
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`11, 17, and 18 of the ‘641 Patent, he opines, “[t]o the extent that any differences may
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`12
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 13 of 14 PageID #: 29557
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`exist between the Accused Products machine and the features disclosed in Accused
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`Claims of the ’641 patent, a person of ordinary skill in the art would have understood
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`these differences to be insubstantial.” (D.I. 213-8 at ¶ 166.) Dr. Meyer cites no difference
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`nor explains why those non-specified differences are insubstantial. His function-way-
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`result test analysis fares no better. (Id.)
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`The total absence of Dr. Meyer’s rationale for his doctrine of equivalents
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`conclusion means that there’s too large a gap between the underlying data and his
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`ultimate opinion. I can’t tell if his opinion is “supported by sufficient facts.” ZF Meritor,
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`696 F.3d at 290. In such an instance, exclusion is appropriate. See Oddi, 234 F.3d at 146.
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`Wirtgen says that Caterpillar’s argument goes only to weight, but I would be ceding my
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`gatekeeping role if I agreed. See Daubert, 509 U.S. at 591. Wirtgen has the burden to
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`show by a preponderance of the evidence that Dr. Meyer’s opinion is reliable. By failing
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`to “outline a line of reasoning from a logical foundation” that supports this conclusion,
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`Dr. Meyer’s doctrine of equivalents opinion is unreliable. Simpson, 2013 WL 2255472, at
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`*2.
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`III.
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`CONCLUSION
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`I will exclude Mr. Bartkowski’s testimony and Dr. Meyer’s doctrine of equivalents
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`opinion. I will permit the other testimony at issue in the Motions. An appropriate Order
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`follows.
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`13
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`Case 1:17-cv-00770-JDW Document 283 Filed 01/16/24 Page 14 of 14 PageID #: 29558
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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`January 16, 2024
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