4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 1 of 6 Pg ID 33446
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 12-cv-11758
`HON. GERSHWIN A. DRAIN
`
`EVERLIGHT ELECTRONICS CO.,
`LTD., and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`vs.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`
`Defendants/Counter-Plaintiffs,
`
`vs.
`
`EVERLIGHT AMERICAS, INC.,
`
`Defendant.
`
`__________________________________/
`
`ORDER DENYING EVERLIGHT’S MOTION FOR RECONSIDERATION OF THE
`COURT’S DAUBERT ORDER GRANTING NICHIA’S MOTION TO EXCLUDE DR.
`BRETSCHNEIDER ON ISSUES OF ENABLEMENT [#378]
`
`I. INTRODUCTION
`
`Presently before the Court is the Plaintiff’s/Counter-Defendant’s, Everlight Electronics Co.,
`
`Ltd. (“Everlight”), Motion for Reconsideration, filed on October 6, 2014. Specifically, Everlight
`
`seeks reconsideration of this Court’s September 22, 2014, Order excluding the expert testimony of
`
`Dr. Eric Bretschneider regarding enablement of the Markush group phosphor limitation in the claims
`
`of the‘925 Patent.
`
`On October 16, 2014, this Court entered an Order requiring Defendants/Counter-Plaintiffs,
`
`-1-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 2 of 6 Pg ID 33447
`
`Nichia Corporation and Nichia America Corporation (collectively “Nichia”), to file a Response to
`
`the present motion by November 3, 2014. Everlight filed a Reply in support of the present motion
`
`on November 10, 2014. Upon review of the parties’ submissions, the Court will deny Everlight’s
`
`present motion.
`
`II. STANDARD OF REVIEW
`
`Local Rule 7.1(h)(3) of the Local Rules of the United States District Court for the Eastern
`
`District of Michigan provides:
`
`Generally, and without restricting the Court’s discretion, the Court will not grant
`motions for rehearing or reconsideration that merely present the same issues ruled
`upon by the Court, either expressly or by reasonable implication. The movant must
`not only demonstrate a palpable defect by which the Court and the parties and other
`persons entitled to be heard on the motion have been misled but also show that
`correcting the defect will result in a different disposition of the case.
`
`E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear, unmistakable,
`
`manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004) (citing
`
`United States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001)). “[A] motion for
`
`reconsideration is not properly used as a vehicle to re-hash old arguments or to advance positions
`
`that could have been argued earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch.,
`
`298 F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of Chippewa Indians v.
`
`Engler, 146 F.3d 367, 374 (6th Cir.1998)).
`
`A party may also move pursuant to Rule 59(e) of the Federal Rules of Civil Procedure for
`
`reconsideration of a court’s prior ruling. Reconsideration is generally warranted under Rule 59(e)
`
`“if there is clear error of law, newly discovered evidence, an intervening change in controlling law,
`
`or to prevent manifest injustice.” Gencorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834
`
`(6th Cir. 1999) (internal citations omitted). Similar to the local rule, Rule 59(e) motions “are not
`
`-2-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 3 of 6 Pg ID 33448
`
`intended as a vehicle to relitigate previously considered issues; should not be utilized to submit
`
`evidence which could have been previously submitted in the exercise of reasonable diligence; and
`
`are not the proper vehicle to attempt to obtain a reversal of a judgment by offering the same
`
`arguments previously presented.” Kenneth Henes Special Projects Procurement v. Continental
`
`Biomass Industries, Inc., 86 F. Supp.2d 721, 726 (E.D. Mich. 2000). A Rule 59(e) motion is “an
`
`extraordinary remedy and should be granted sparingly.” Plaskon Elec. Materials, Inc. v. Allied-
`
`Signal, Inc., 904 F. Supp. 644, 669 (N.D. Ohio 1995).
`
`III. LAW & ANALYSIS
`
`As an initial matter, the Court notes that the majority of Everlight’s arguments in the instant
`
`motion were raised in its Response in Opposition to Nichia’s Motion to Exclude the Testimony of
`
`Everlight’s Technical Expert. It is well-settled that motions brought pursuant to either Local Rule
`
`7.1(h) or Rule 59(e) of the Federal Rules of Civil Procedure are not properly before the Court where
`
`they merely “re-hash old arguments” or where they are used to “relitigate previously considered
`
`issues . . . .” Smith ex rel. Smith, 298 F. Supp. 2d at 637; Kenneth Henes Special Projects
`
`Procurement, 86 F. Supp.2d at 726.
`
`For instance, Everlight maintains that the proper inquiry for determining whether Dr.
`
`Bretschneider is qualified to opine on enablement of the Markush group claim limitation is “whether
`
`he is a person of ordinary skill in the art.” See Dkt. No. 325 at 5-14. Everlight asserted this same
`
`argument in its prior briefing, as well as its assertions that it was error to rely on products liability
`
`cases in rendering a decision(Dkt. No. 325 at 8), the parties’ definitions of a person of ordinary skill
`
`do not require expertise in phosphor synthesis (Dkt. No. 325 at 5-7), and that any inconsistencies
`
`between Dr. Bretschneider’s and Dr. Wilding’s opinions should go to weight rather than
`
`-3-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 4 of 6 Pg ID 33449
`
`admissibility (Dkt. No. 325 at 13-14).
`
`The only new argument raised by Everlight does not demonstrate a palpable defect in this
`
`Court’s conclusion that Dr. Bretschneider lacks the requisite knowledge, skill, experience, training
`
`or education in phosphor synthesis to provide expert testimony on enablement. Specifically,
`
`Everlight suggests that this Court should find that Dr. Bretschneider has the relevant expertise to
`
`provide testimony on phosphor synthesis because one of the inventors of the ‘925 Patent similarly
`
`admitted a lack of expertise in this area. Granting reconsideration based on the assertion of
`
`“positions that could have been argued earlier but were not[]” is likewise inappropriate. Smith ex
`
`rel. Smith, 298 F. Supp. 2d at 637; Kenneth Henes Special Projects Procurement, 86 F. Supp.2d 721
`
`at 726.
`
`In any event, the Court correctly concluded that Dr. Bretschneider is not qualified to offer
`
`expert opinion on phosphor synthesis; he admits as much. See Dkt. 389, Ex. G (“Q. So you would
`
`not consider yourself an expert in the field of synthesis of garnet phosphors; is that fair? A. That’s
`
`fair.”). Moreover, Everlight misapprehends the requirements of Rule 702 when it argues that “the
`
`first and only inquiry the Court must resolve is whether Dr. Bretschneider is a person of ordinary
`
`skill in the art.” This is an incorrect statement of the law. Patent matters do not allow for an
`
`exception to Rule 702's requirement that experts be qualified by knowledge, skill, experience,
`
`training or education. The cases relied on by Everlight1 demonstrate the error of Everlight’s
`
`argument. Sundance, Inc. v. Demonte Fabricating, 550 F.3d 1356, 1363 (Fed. Cir. 2008) (“We do
`
`not, of course, suggest that being a person of ordinary skill in the art automatically entitles a witness
`
`1 Everlight cited the same cases in its Opposition to Nichia’s Motion to Exclude the
`Testimony of Everlight’s Technical Expert. See Dkt. No. 325 at 7.
`
`-4-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 5 of 6 Pg ID 33450
`
`to testify as an expert . . . .”). While “[a] witness possessing merely ordinary skill will often be
`
`qualified to present expert testimony[,]” exclusion is required under Rule 702 where the witness
`
`lacks the relevant technical expertise. Id. at 1364-65.
`
`Everlight’s position that the legal construct of a person of ordinary skill in the art somehow
`
`displaces Rule 702's requirement that a witness possess the relevant technical expertise was soundly
`
`rejected by the Federal Circuit in Proveris Sci. Corp. v. Innovasystems, Inc., 536 F.3d 1256 (Fed.
`
`Cir. 2008). In Proveris Sci. Corp., the defendant-appellant argued that the district court improperly
`
`excluded the testimony of its invalidity expert because he was a person of ordinary skill in the art.
`
`Id. at 1267. In rejecting this argument, the Federal Circuit opined that:
`
`We come to the same conclusion with respect to the court’s ruling limiting the scope
`of Mr. Quinn’s testimony to the prosecution history and the topic of plumes, because
`they were the only matters within his relevant expertise. Although a mechanical
`engineer by training, his technical experience was limited to satellite design while
`employed as an engineer at General Electric. Accordingly, we cannot say the district
`court did not act within its discretion in finding Mr. Quinn unqualified to testify
`about laboratory equipment used in the development of drug delivery devices.
`
`Id. at 1267-68 (citing Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 973 (1st Cir. 1991)). It is
`
`noteworthy that in reaching its conclusion, the Proveris Sci. Corp court relied on a products liability
`
`case which, of course, undermines Everlight’s argument that it was error for this Court to rely on
`
`products liability cases in determining that Dr. Bretschneider was not qualified to opine in the area
`
`of phosphor synthesis. See Dkt. No. 378 at 7.
`
`Lastly, Everlight erroneously claims this Court overlooked Dr. Bretschneider’s experience
`
`with phosphors. Contrary to its assertion, this Court considered his qualifications and experience
`
`and found that he lacked the requisite knowledge, skill, experience, training or education in
`
`phosphor synthesis to assist the jury on the issue of enablement of the Markush claim limitation.
`
`-5-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 401 Filed 01/09/15 Pg 6 of 6 Pg ID 33451
`
`IV. CONCLUSION
`
`Accordingly, Everlight has failed to demonstrate that it is entitled to relief under Rule 7.1(h)
`
`or Rule 59(e). Everlight’s disagreement with this Court’s conclusion does not amount to a palpable
`
`defect by which this Court has been misled, nor that the Court committed a clear error of law. For
`
`the reasons articulated above, Everlight’s Motion for Reconsideration of the Court’s Daubert Order
`
`Granting Nichia’s Motion to Exclude Dr. Bretschneider on Issues of Enablement [#378] is DENIED.
`
`SO ORDERED.
`
`Dated: January 9, 2015
`
`/s/Gershwin A Drain
`GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`
`-6-