`Highly Confidential — Attorneys' Eyes Only
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` fiMARK OHE
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`'&.
`3ROOKSTZ
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`?niladelpnia, Pennsylvania
`
`Wednesday, July 16,
`
`20l4
`
`Reported by:
`
`
`
`
`
`Rebecca Schaumlo
`
`
`
`Job No: 81712
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

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`Highly Confidential — Attorneys'
`
` Eyes Only
`
`APPEARANCES:
`
`July 16, 2014
`9:04 am.
`
`Videotaped deposition of DR. DAVID
`BROOKSTEIN, held at the offices of DLA PIPER LLP,
`1650 Market Street, Philadelphia,
`Pennsylvania, before Rebecca Schaumloffel, a
`Registered Professional Reporter, Certified
`Livenote Reporter and Notary Public of the
`State of New York and the State of New
`
`Jersey.
`
`DLA PIPER
`
`Attorneys for the Plaintiff
`1650 Market Street
`Philadelphia, PA 19103
`BY: MICHAEL BURNS, ESQ.
`
`FAEGRE BAKER DANIELS
`
`Attorneys for the Defendant
`300 North Meridian Street
`Indianapolis, Indiana 46204
`BY: TREVOR CARTER, ESQ.
`MATTHEW ENNIS, ESQ.
`
`ALSO PRESENT:
`
`Matthew Smith, videographer
`
`
`
`wdamfiwNH
`
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`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`Page 4
`
`(Whereupon, Brookstein Exhibit
`1060, Petitioner's Notice of David
`Brookstein was marked for
`
`identification as of this date by the
`Reporter.)
`(Whereupon, Brookstein Exhibit
`1061, Petitioner's Notice of
`Deposition was marked for
`identification as of this date by the
`Reporter.)
`(Whereupon, Brookstein Exhibit
`1062, Petitioner's Notice of
`Deposition was marked for
`identification as of this date by the
`Reporter.)
`(Whereupon, Brookstein Exhibit
`1063, Petitioner's Notice of
`Deposition was marked for
`identification as of this date by the
`Reporter.)
`THE VIDEOGRAPHER: This begins
`tape labeled number 1 of the
`videotaped deposition of Dr. David
`Brookstein in the matter of Target
`
`Corporation V Destination Maternity
`Corporation for the United States
`Patent and Trademark Office. This
`
`deposition is being held at the
`1650 Market Street, in Philadelphia,
`on July 16, 2014, at approximately
`9:05 am.
`
`My name is Matthew Smith for TSG
`Reporting Incorporated.
`I am the
`legal video specialist. The Court
`Reporter is Rebecca Schaumloffel in
`association with TSG Reporting.
`Will counsel please introduce
`yourselves for the record.
`MR. CARTER: Trevor Carter from
`
`Faegre Baker Daniels for the
`Petitioner, Target Corporation.
`MR. ENNIS: Matthew Ennis from
`
`Faegre Baker Daniels, also for
`Petitioner.
`MR. BURNS: Michael Burns from
`
`DLA Piper for patent owner Destination
`Maternity Corporation.
`THE VIDEOGRAPHER: Thank you.
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`Page 6
`
`Will the Court Reporter please swear
`in the witness.
`
`DAVID BROOKSTEIN,calledasa
`witness, having been first duly sworn by a
`Notary Public of the State of New York, was
`examined and testified as follows:
`EXAMINATION BY
`MR. CARTER:
`
`Q.
`record.
`
`Please state your name for the
`
`A. My name is David Stuart,
`S-T-U-A-R-T, Brookstein.
`Q. And what is your address?
`
`Q. We have already marked
`Exhibits 1060 through 1063 that have been put
`in front of you.
`A. Yes.
`
`So do you understand that you are
`Q.
`here today in response to a Deposition Notice
`for the Patent Trial and Appeal Board
`proceedings referenced on those documents?
`
`Page 8
`
`If you want to take a break, you
`Q.
`can take a break at any time. The only
`exception to that rule is not to break during
`a pending question.
`A.
`I understand.
`
`So if there is a pending
`Q.
`question, I would like an answer to that
`question before we break.
`A.
`I understand.
`
`Q. On how many prior occasions have
`you been deposed?
`A.
`I don't know the precise number.
`Between 30 and 40 times.
`
`Q. And have those all been in the
`capacity as an expert witness?
`A. Yes.
`
`In what type of cases?
`Q.
`A. Patent cases, both for the
`defense, plaintiff. Product liability cases,
`defense, plaintiff, and I work as an expert
`for the US. Department of Justice Civil
`Fraud Division and as a false claim acts case
`
`that I have been working on that I was
`deposed.
`
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`
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
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`D. BROOKSTEIN
`I do.
`
`A.
`
`Q. And you have provided expert
`declarations on behalf of the patent owner
`Destination Maternity Corporation in those
`proceedings?
`A.
`I have.
`
`Is there anything that would
`Q.
`prevent you from testifying today, medical
`condition?
`A. Not that I can --
`
`Illness?
`Q.
`A. Not that I know of right now.
`Q. Okay. Have you been deposed
`before?
`A. Yes.
`
`Q. Okay. So you understand I will
`be asking questions and from time to time
`your counsel may be objecting and then you
`will be answering. In fairness to the Court
`Reporter, only one of us should talk and so
`we should try to do the best not to interrupt
`each other. So I will my best to do that and
`I will ask you to do the same.
`A.
`I understand.
`
`Q. What did the false claims acts
`relate to?
`
`I can only tell you, of course,
`A.
`what is public. It relates -- the federal
`government is suing a manufacturer of fibers,
`international manufacturing alleging that the
`fibers are defective.
`
`Q. Any of your prior expert witness
`cases involve maternity garments?
`No, they did not.
`Any involve clothing?
`Yes, they did.
`Approximately how many?
`Four or five.
`. What were those cases?
`
`. The subject matter or the actual
`parties?
`Q. Let's start with the parties.
`A.
`I have done a case for Nike and a
`
`defense case that involves their pro combat
`shorts.
`I have done a case for Cabela's
`
`against -- they were being sued by a company
`called Seirus, S-E-I-R-U-S, for ski masks.
`I
`have done a case for a firm that is Ohio
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`Page 10
`
`Page ll
`
`
`
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`
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`
`alleged to have copied a manufacturing
`process by a company which -- owned by a
`company in Chicago called McDavid and Nike
`received a summary judgment in their favor
`that they did not copy.
`Q. What was the subject matter of
`the case, more particular than the combat
`shorts?
`
`It involved the way the shorts
`A.
`were manufactured using a series of --
`elastic cushions, rubber cushions or, not
`rubber, but a cushion, foam cushion.
`Q.
`Is there any overlap in the
`subject matter in the Nike case to this case?
`A. Other than they are clothing, no.
`Q. Anything having to do with the
`properties of the shorts as made or was it
`all related to the manufacturing of the
`shorts?
`
`It was a method. Manufacturing.
`A.
`So nothing to do with the
`Q.
`composition of the shorts?
`MR. BURNS: Objection to form.
`A. Not that I can recall.
`
`D. BROOKSTEIN
`
`Cabela's.
`
`Q. Cabela's won on summary judgment?
`A. Yes, they did.
`Q. On what issue?
`A.
`I don't recall.
`
`Q. Did you issue any reports in the
`Cabela's case?
`A.
`I did.
`
`Q. Were you deposed in that case?
`A.
`l was.
`
`Q. Did you provide any hearing or
`trial testimony in that case?
`A.
`It never went to trial.
`
`Q. But was there a hearing at which
`you testified, for example, summary judgment
`hearing?
`A. No. And you asked me earlier if
`I thought of any cases.
`I just thought of
`another case that involved clothing. It was
`a case where I was working for the counsel
`representing a company called Icon Outdoors,
`l—C-O-N. It was on hunting gear, and l
`testified in a Markman Construction hearing
`and then the case was settled.
`
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`
`Willow Wood that was being sued for
`infringement for what they call stump socks
`for amputees.
`I just can't remember -- those
`are the three I can remember offhand
`
`right now.
`Q.
`If you remember any of the others
`during the deposition, please let me know.
`A.
`I will let you know.
`That was patent cases, is that
`correct?
`
`Q. Yes.
`A. Yes.
`
`I take it those cases are not
`Q.
`listed in your CV that was provided with your
`expert report?
`A. Yes. And I have an updated CV I
`brought.
`Q. But those cases are not
`included --
`
`I don't think they are, no.
`A.
`Q. What about -- what was at issue
`for the Nike pro combat shorts?
`A.
`It was a process -- a method
`case. And it was a case that Nike was
`
`Page 12
`
`D. BROOKSTEIN
`
`Is the Cabela's case, that
`Q.
`related to a ski mask?
`A. Yes.
`
`Q. What, in more detail, was that
`issue for the ski mask?
`A.
`I don't recall all the details.
`
`But it was the way the ski mask was made and
`the elasticity of the ski mask as it went
`over the wearer's face.
`
`Q. And you represented Cabela's who
`was the opposing party?
`A.
`I didn't represent.
`working for Cabela's, yes.
`Q. Who was the opposing party?
`A. A company called Seirus,
`S-E-I-R-U-S.
`
`I was
`
`Q. Was Cabela's a defendant or a
`plaintiff?
`A. They were defendants. Also,
`there was a corresponding case for the same
`product where Seirus had sued a company in
`Canada called Bula, B-U-L-A, essentially the
`same case but it settled. The preceding
`case, there was a summary judgment motion for
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`Page 14
`
`Page 15
`
`Q. Who was the opposing party in the
`Icon case?
`A.
`I don't remember.
`
`Q. Do you know where the case was?
`A. Baltimore.
`
`Q. And in what year, approximately,
`did you testify?
`A.
`2010 or 2011, I don't recall.
`Q. We were talking about that
`case -- what --
`
`I thought of another case.
`
`A.
`sorry.
`Q. That's fine.
`A.
`I don't have the list in front of
`
`I am
`
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`
`report, do you still have those today?
`A. Not with me.
`
`Q. But you have them in your
`possession?
`A.
`Somewhere, yes.
`Q.
`Is there any kind of
`confidentiality order relating to the report
`or the deposition?
`A.
`I don't recall.
`
`Q. Where was the Cabela's case
`venued?
`A.
`In Illinois.
`
`I don't know which
`
`district, but it was in Illinois.
`Q. You said that the ski mask case
`had dealt with the way it was made and the
`elasticity on the wearer?
`A. That was part of it.
`Q. What were the issues regarding
`the elasticity?
`A. Mr. Carter, as I sit here, I
`don't recall.
`I haven't looked at that case
`
`I don't recall.
`in three or so years.
`Q. You don't recall anything about
`the elasticity issues in the case?
`
`Page 17
`
`D. BROOKSTEIN
`
`understanding it settled in favor of Ohio
`Willow Wood.
`
`Q. What do you mean it settled in
`favor of Ohio Willow Wood?
`
`A. Well, Ohio Willow Wood was at
`suit for infringement. But I haven't seen
`the file, the order. That's my
`understanding.
`Q. Did Ohio Willow Wood pay anything
`to Thermo-PLY?
`A.
`I have no idea.
`
`Just curious how you know it
`Q.
`settled in favor of Ohio Willow Wood?
`
`A. Because we were set to go to
`trial and the attorney had called had me up
`and said we are not going to trial. We got a
`favorable settlement. That's as far as I
`know.
`
`Q. How long ago was that?
`A. The settlement?
`. Yes.
`A. The last three or four months.
`
`So you probably remember what
`Q.
`some f the elasticity issues were in that
`
`I did a case that involved protective
`me.
`gloves for a company called Banom
`Manufacturing, B-A-N—O-M.
`Q. Who was the opposing party in
`that case?
`A.
`I don't remember.
`
`Q. Where was that case venued?
`A.
`In Philadelphia.
`Q. All right. Let's go back to the
`Cabela's case. Your deposition and your
`
`Page 16
`
`D. BROOKSTEIN
`I don't.
`
`All right. The Ohio Willow Wood
`
`Yes.
`
`. Who was the opposing party?
`A. A company called Thermo—PLY in
`Florida.
`
`Q. Where was the case venued?
`A.
`I am not sure if it was in Tampa
`or in Ohio because we never went to court on
`that.
`
`Q. What, in particular, about the
`stump sock was at issue in the case?
`A. The elasticity of side pieces to
`the stump sock, whether they were elastic
`or not.
`
`Q. What were the elasticity issues
`in that case?
`
`A. Whether they were elastic or not.
`That's as far as -- that's as much as I can
`remember.
`
`Q. Do you know how that case ended
`or is it still ongoing?
`A.
`It recently settled. It is my
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`
`
`D. BROOKSTEIN
`
`Page 19
`
`Somewhere, but I don't know where
`A.
`they are.
`Q. Were you deposed in that case?
`A. Yes.
`
`Q. Do you still have the deposition
`transcript?
`A.
`Somewhere. But I don't recall
`where.
`
`Q. Did you provide any testimony at
`hearings, any other proceedings?
`A.
`I was asked to go to a Markman
`hearing but they never put me up.
`Q.
`In the Icon Outdoors case, do you
`recall the name of the adverse party?
`A. You asked me that question, I
`don't remember.
`
`It was in Baltimore?
`Q.
`A. As best as I know, yes.
`Q. What specifically about the
`hunting gear was at issue?
`A. The location of the sternum, the
`top of the sternum.
`Q. What is the sternum?
`A. The breast bone, as best as I can
`
`D. BROOKSTEIN
`
`provide testimony regarding the location of
`body parts such as sternums?
`A.
`I am.
`
`So where is the sternum?
`Q.
`A. Well, I haven't looked at that
`recently so I'm not going to answer that
`right now. I'd have to go back and look at
`what I said.
`
`Q. Well, the location of the sternum
`isn't going to change based on what you said
`in your report, is it?
`A. No, but I remember when I did my
`research.
`I remember doing research.
`I
`haven't done it recently, so I will not sit
`here and do that.
`
`So today, you can't say where the
`Q.
`sternum is located on a person's body?
`MR. BURNS: Objection to form.
`A. Today, I am going to say without
`going back and looking at what I did, I am
`not going to testify about it.
`Q. Okay. Where is the sternum
`relative to a person's abdomen?
`MR. BURNS: Objection to form.
`
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`
`D. BROOKSTEIN
`
`case?
`
`A. No. Because what had happened
`was, that case, actually, the last time I
`actively worked on that case was in 2007, and
`then, there were a lot of issues tha --
`legal issues about if it was going to be
`continued or what have you, and I thought the
`case was over. And then, about a month prior
`to going to trial, I was -- a new firm got
`the case, a firm called Dinsmore, and I was
`told, well, we are going to go to trial so
`you better get up to speed on the case. By
`the time I was ready to get up to speed, they
`called and said it was settled. So this goes
`back to 2007.
`I barely remember.
`Q. Did you issue any reports,
`declarations, other written product in that
`case?
`
`I did.
`
`What did you issue in that case?
`Reports.
`How many?
`I don't recall.
`
`Do you still have them?
`
`D. BROOKSTEIN
`
`recall.
`
`Q. The breast bone, can you move
`your tie and just kind of point generally to
`what it is?
`
`A. Well, it's been awhile since I
`looked at that case.
`I don't remember what I
`
`I remember we got a construction,
`testified.
`whatever I testified was in our favor, but I
`remember the breast bone is something in
`there, but I am not an anatomist so I am not
`going to hold myself to that.
`Q.
`So make sure I understand, did
`you provide eXpert opinion regarding the
`location of the sternum?
`
`A. No. Expert location of where the
`garment was on the sternum.
`I was produced a
`medical drawing, where does the garment end
`up on the sternum. That's as far as I
`remember.
`
`So you didn't testify about the
`Q.
`location of a particular body part?
`A.
`I don't recall.
`I just don't
`recall.
`
`Q. Are you qualified to do, to
`
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`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`Page 22
`
`Page 23
`
`
`
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`
`have to go back and look at what I said.
`don't recall that that was part of the issue
`here.
`In the Icon case.
`
`I
`
`Q. Okay. Putting the Icon case
`aside.
`
`A. Right.
`Q.
`Just talking generally, you are
`here as an expert witness here today, is that
`correct?
`A. That's correct.
`
`Q. Can you or can you not tell us,
`in the context of this case, the location of
`a sternum relative to a woman's breast area?
`
`MR. BURNS: Objection to form.
`Also, outside the scope of his
`Declaration.
`
`I was only looking at breast
`A.
`area. And abdomen in this matter.
`
`Q. Are you familiar with the term
`thorax?
`A.
`
`I am.
`
`Q. Where is a person's thorax?
`MR. BURNS: Objection to form.
`A. Again, that was part of my
`
`D. BROOKSTEIN
`I can talk about where the arm
`
`A.
`
`is. Where the leg is, yes.
`Q.
`So I would have to go through
`body part by body part?
`MR. BURNS: Objection to form.
`A. Yes. But I haven't prepared to
`talk about anatomy except for the areas that
`related to this matter.
`
`Just to short circuit this. If I
`Q.
`ask any questions about the thorax and its
`location relative to the breast area, the
`sternum, the abdomen or the belly, you aren't
`going to be able to provide testimony about
`those locations, is that correct?
`MR. BURNS: Object to form.
`A. That is correct.
`
`Q. And the same for the sternum,
`today, you aren't going to be able to provide
`any testimony about the location of the
`sternum relative to the breast area, to the
`belly, to the abdomen?
`MR. BURNS: Objection to form.
`A. That is correct.
`
`Q. Okay. How about the waist, I
`
`deafiflkfiwNH
`mfiwmi—‘OLOQJQQU‘iibUJNi—‘O
`LOQJQOWCJ‘IkBUJNH
`mfiwmi—‘OLOQJQQU‘iibUJNi—‘O
`
`[\DNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`I have to go back and look at
`A.
`what I said about the sternum.
`I am not
`
`going to go there.
`Q. You can't, in the context of this
`case, can you provide testimony about where
`the sternum is relative to a person's
`abdomen?
`
`MR. BURNS: Objection to form.
`I never looked at stemums with
`
`A.
`
`respect to abdomen in this case.
`Q. Okay. How about the location of
`the sternum relative to a woman's breast
`area?
`
`MR. BURNS: Objection.
`I keep coming back, I haven't
`A.
`done this in awhile.
`I don't recall what
`I did.
`
`Q. Okay. So today you can't provide
`any testimony on the location of a sternum
`relative to a person's breast area, a woman's
`breast area?
`
`MR. BURNS: Objection to form.
`I am not going to say I can't.
`I
`A.
`am saying Ihaven't done it in awhile.
`
`I
`
`Page 24
`
`D. BROOKSTEIN
`
`testimony on the Icon case. Unless I see
`what my testimony is, I am not going to talk
`about that.
`
`So in the Icon case, you provided
`Q.
`testimony about the location of the thorax
`also?
`A.
`
`I am not sure.
`
`Put the Icon case aside, you are
`Q.
`an expert witness in the present case that
`brings us here today, right?
`A. That is correct.
`
`Q. Can you tell us where the thorax
`is located relative to the abdomen?
`
`MR. BURNS: Objection to form.
`Also outside the scope of the
`Declaration.
`
`I can only -- for this case, I
`A.
`can talk about the breast area and I can talk
`about the abdomen.
`I can talk about the
`waist. That's all I looked at in this case.
`
`Q. Can you talk about the location
`of any other body part on a person other than
`the abdomen, waist and breast area?
`MR. BURNS: Objection to form.
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`Page 26
`
`
`
`wmdo‘ififlfiwNH
`memmwouoooqmoukuwmieo
`wmdo‘ififlfiwNH
`mewmwouoooqmoukuwmi—io
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`left that out, can you provide any testimony
`about the location of the sternum and/or the
`
`thorax relative to a person's waist?
`MR. BURNS: Objection to form.
`Same situation, no.
`A.
`If you were able to review your
`Q.
`testimony in the Icon case, would that help
`you to be able to provide that testimony
`today?
`A.
`
`I can't answer until I have seen
`
`the testimony. It was three, four years ago.
`I don't recall.
`
`So knowing that opinion from
`Q.
`three or four years ago would help you
`provide an opinion today?
`MR. BURNS: Objection.
`A. To what? What question? To
`what -- relative to what?
`
`Q. Knowing the location of the
`sternum and the thorax.
`
`A. Yes, if I reviewed my
`testimony, yes.
`Q.
`So you said you testified at a
`Markman hearing. Do you know if a transcript
`
`Page 28
`
`A. O-B-E-R hyphen K-A-L-E-R in
`Baltimore.
`
`Q. And do you recall who represented
`the opposing party?
`A. No. You asked me that question,
`I don't know.
`
`Q. Well, not the name of the
`opposing party, but the attorneys on the
`other side?
`
`A. No, I don't.
`Q.
`So the hunting gear, you were
`looking at the location of the hunting gear
`relative to the sternum and the thorax in
`that case?
`A. As best as I can recall.
`
`Q. What was the particular issue of
`the location of the hunting gear relative to
`those body parts?
`A. As I indicated to you, I barely
`remember this case. You also remember, I
`brought it up afterwards. That's how far
`back it was in my mind.
`I don't remember any
`of the details of this case other than it was
`
`for Icon. Other than Icon got the settlement
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`deamfiwNH
`wwi—‘OLOQJQQU‘iibUJNi—‘O
`
`LOQJQO‘XCJ‘libLAJNH
`mfiwmi—‘OLOQJQQU‘iibUJNi—‘O
`
`[\DNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`exists for that Markman hearing?
`A.
`It was in court. I would assume
`
`I didn't get a copy of
`
`but I have no idea.
`the transcript.
`Q. Did you provide any reports in
`that case?
`A.
`I don't think so.
`
`Q. You didn't put in an expert
`report prior to testifying at the Markman
`hearing?
`A.
`I don't think so, no, but I am
`not 100% sure.
`I don't think so.
`I don't
`recall.
`
`Q. Were you deposed in that case?
`A.
`I don't think so.
`
`So you were -- you testified at
`Q.
`the Markman hearing without being deposed
`beforehand?
`
`I am pretty sure I was not
`A.
`deposed for the Icon case, that's correct.
`Q. Who -- what counsel represented
`Icon?
`A. Ober Kaler.
`
`Q. Can you spell that please?
`
`in their favor, to the best of my
`understanding. That's as much as I remember
`about that case.
`
`Q. Okay. Why do you say Icon
`received settlement in its favor?
`
`MR. BURNS: Objection to form.
`A. Because the attorneys, again,
`told me the case is over and they got what
`they wanted. That's as much as I know.
`Q. You didn't see the Settlement
`Agreement?
`A. Oh, absolutely not.
`Q. Any other body parts at issue in
`the Icon case other than the sternum and
`thorax?
`
`A. As I sit here, I don't remember.
`Q. What were the properties of the
`hunting gear at issue in the case?
`A. As I indicated, I told you
`I don't
`everything I know about that case.
`remember anything else about that case.
`Q.
`It was elasticity of the hunting
`gear at issue?
`MR. BURNS: Objection to form.
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`
`Page 30
`
`A. As I indicated, I don't remember
`any of the issues in that case.
`Q. You don't recall what kind of
`hunting gear it was, was it a jacket,
`camouflage bibs?
`A.
`It was a jacket, that I remember.
`Q. What kind ofj acket?
`A. You need to be more specific.
`Q. Do you recall anything more
`specific about the jacket?
`A. No.
`
`Q. Anything else you can recall
`about the Icon case that you haven't already
`testified to here today?
`A. No.
`
`Q. Then the Banom Manufacturing
`case?
`A. Yes.
`
`I can't remember if I asked if
`Q.
`you recall the name of the opposing party?
`A. You did ask and I don't remember.
`
`Q.
`A.
`
`Q.
`
`It was venued in Philadelphia?
`It was.
`
`Involved protective gloves?
`
`Page 32
`
`D. BROOKSTEIN
`claims in that case?
`A. No.
`
`So for your patent cases
`Q.
`involving clothing, you talked about the Nike
`case, Cabela's case, Ohio Willow Wood case,
`the Icon case and the Banom manufacturing
`case?
`A. Yes.
`
`Q. Any others that you can recall?
`A. Not as I sit here, but as the day
`progresses, other cases might come to mind.
`Q.
`Please let me know if something
`else comes to mind. For written work product
`in those cases, you recall a report, at least
`one report in the Ohio Willow Wood case and
`at least one report in the Cabela's case?
`Yes.
`
`Any others?
`Nike.
`
`So in Nike, you had a report?
`Yes.
`
`. Do you still have that report?
`. No. They asked -- at the end of
`the case, I had to return all materials.
`I
`
`OOJO‘XO‘iibbJNH
`
`LOQJQO‘iCflrbLAJNH
`mfiwmi—‘OLOQJQQU‘irbUJNi—‘O
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`
`
`deafiflkfiwNH
`i—‘OLOQJQQU‘irbUJNi—‘O
`
`Lomqmmkuwmre
`mewmwocoooqmoficuwmr—ro
`
`mmr—rr—rr—rr—rr—rr—rr—rr—rr—rr—r
`
`r\)r\>r\>r\)r\>r\)r—-r—-r—-r—lr—-r—-r—-r—-r—rr—-
`
`D. BROOKSTEIN
`A. Yes.
`
`Q. Did you provide an expert report
`or Declaration in that case?
`A.
`I don't recall.
`
`Q. Were you deposed in that case?
`A. No.
`
`Q. Did you provide any testimony at
`a hearing or trial or any other similar
`setting?
`A.
`
`I seem to remember that I -- it
`
`I
`was an Eastern District of Pennsylvania.
`went to a Markman hearing, but I don't recall
`if I testified or not.
`
`Q. About the protective gloves at
`issue?
`
`A. The yarn construction.
`Q. What about the yarn construction?
`A.
`I don't recall the exact details
`
`other than it involved elasticity of the
`yarn.
`
`Q. Anything else?
`A. Not as I sit here.
`
`Q. When you said the elasticity of
`the yarn was at issue, do you recall the
`
`D. BROOKSTEIN
`
`do not have that report.
`Q. Were you deposed in that case?
`A. Yes.
`
`Q. Do you still have the deposition
`transcript?
`MR. BURNS: Objection.
`A. No.
`I was told to return
`
`everything.
`Q. Did you provide any testimony in
`that case?
`
`In depositions, yes.
`A.
`Q. Hearing or trial?
`A. No.
`
`Q. All right. So any other written
`work product that you provided for any of
`these cases we have discussed?
`
`A. As I sit here, I can't recall.
`Q. Then, I understand that you
`testified at a Markman hearing in the Icon
`case and you may have testified at a Markman
`hearing in the Banom Manufacturing case?
`A.
`I know I was at a Markman
`
`hearing.
`Q.
`
`I don't know if I testified.
`In the Banom case?
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`deafiflkfiwNH
`mfiwmi—‘OLOQJQQU‘iibUJNi—‘O
`LOQJQO‘XCJ‘lkBUJNH
`ibWNi—‘OLOQJQQU‘iibUJNi—‘O
`
`[\DNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`[\DNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`D. BROOKSTEIN
`In the Banom case.
`
`A.
`
`Q. Any other testimony, hearing,
`trial, any other proceedings in any of those
`cases?
`A. Not as I sit here.
`recall.
`
`I can't
`
`Q. When you were deposed in the Nike
`case, the Cabela's case and the Ohio Willow
`Wood case?
`
`A. Yes, and I also said the Bula
`case. RememberI said that Seirus sued Bula
`
`I did -- no, Ithink
`and also sued Cabela's.
`that I did not testify in the Bula case.
`I
`submitted a report, but the case was settled
`prior to, as best I can recall the
`deposition.
`Q.
`I see. Were you an expert on
`behalf of Bula also?
`A. Yes.
`
`Q. And the following case?
`A. Yes. Bula was the first case.
`Cabela's was the follow on.
`
`Q. Did you work with the same
`counsel in the Seirus case and the Bula
`
`Page 36
`
`trial, any other proceeding in the Bula case?
`A. Not that I can recall.
`
`Q. Were any of these cases you
`discussed involved in a Patent Office
`
`proceeding?
`I think
`A. These litigation cases.
`they were out of the Patent Office in the
`federal courts.
`
`Sorry, you understand that in the
`Q.
`present case, there's also pending litigation
`in a US. District Court?
`A.
`I do.
`
`Q. And that the same patents are
`also involved in the Patent Office
`
`proceedings referenced in Exhibits 1060
`through 1063?
`A.
`I understand that.
`
`Q. Any of these cases that you have
`discussed so far, Nike case, Cabela's case,
`Bula case, Ohio Willow Wood, Icon, Banom,
`were any of -- did any of those cases have
`related proceedings at the US. Patent
`Office?
`
`
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`cases?
`A. No.
`
`Q. Do you still have the report from
`the Bula case?
`A. Not that I can recall.
`
`Sorry, you represented Cabela's
`Q.
`and Bula?
`
`I
`I didn't represent anybody.
`A.
`was an expert for Bula and I was an expert
`for Cabela's.
`
`Q. But worked with different
`counsel?
`A. Yes. Different firms.
`
`Q. Was the same attorneys but just
`at different firms?
`
`A. No it was totally different. The
`first firm was Pillsbury. The second firm
`was Shook Hardy. Not Shook Hardy.
`I don't
`remember. It was Shook Hardy.
`I don't
`remember.
`
`Q. Were you deposed in the Bula
`case?
`A.
`
`I don't recall.
`
`Q.
`
`Provide any testimony, hearing,
`
`I was strictly litigation
`not recall that.
`in district courts. To the best of my
`knowledge.
`Q. Have there been re-exams,
`re-issues, other Patent Office proceedings
`before IPRs?
`
`MR. BURNS: Objection to form.
`I don't recall.
`
`A.
`
`For example, you mentioned, I
`Q.
`think, it was the, one of the cases, was it
`the Ohio Willow Wood case, is that the case
`where three or four months ago you found out
`that the case settled?
`A. Yes.
`
`Q. And that that case had been going
`on since 2007?
`
`A. Well, it had -- it started and
`then for five or six years there was no
`action going on.
`I don't recall that it was
`something that changed and then it reemerged.
`Q.
`So you don't know if the patent
`or patents at issue in that case were put
`back in front of the Patent Office?
`
`LOQJQO‘XCJ‘libLAJNH
`wwi—‘OLOQJQQU‘iibUJNi—‘O
`
`wmdo‘tfiflfiwNH
`mewmwouoooqmmkuwNi—io
`
`[\DNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`A. They were before IPRs and I do
`
`MR. BURNS: Objection.
`
`TSG Reporting — Worldwide
`
`877—702—9580
`
`Target Corporation Exhibit 1154
`
`Target v. DMC
`
`IPR2013-OO530, 531, 532, 533
`
`

`

`
`Highly Confidential — Attorneys' Eyes Only
`
`D. BROOKSTEIN
`I don't know.
`I have no idea.
`
`A.
`
`Page 38
`
`Q. What other cases have you been
`involved in involving clothing other than the
`patent cases you have mentioned?
`A.
`I have been involved in product
`liability cases and also the case that -- the
`Department of Justice is handling.
`Q. Approximately how many product
`liability cases have you been involved in?
`A. Greater than ten but I don't have
`the number in front of me.
`
`Just a general, what have been
`Q.
`the subject matter of those cases?
`A. Generally, protective clothing
`that either failed or didn't fail.
`
`Q. What do you mean didn't fail?
`A. A person may have been burned,
`but it wasn't because the clothing failed, or
`a person might have been burned and it was
`because the clothing failed.
`Q.
`Is it fair to say that all of the
`cases involved protective clothing where
`there were allegations of failure?
`A.
`I have to go back and look at
`
`Page 40
`
`type pants?
`A.
`I didn't ask those type of
`questions because I didn't want to get into
`the details. When I got into this case, I
`said, Cara, have you ever work Secret Fit
`Belly pants? Yes, they are great pants.
`That's as far as I went.
`
`Q. You didn't ask her why she said
`that?
`
`A.
`that.
`
`I didn't ask anything other than
`
`Q. Have you asked her if she's worn
`any pants made by J.C. Penney?
`A.
`I didn't ask anything else.
`Q. Target?
`A.
`I didn't ask anything else.
`Q. You didn't ask her what that was
`in comparison to, for example?
`MR. BURNS: Objection to form.
`I didn't ask anything else.
`A.
`Q. When was she -- when was she
`expecting, what timeframe?
`A. About three years ago,
`four years ago.
`
`deafiflkfiwNH
`(flfiwNi—‘OLOQJQQU‘iibUJNi—‘O
`LOQJQO‘XCJ‘lkBUJNH
`(flibUJNi—‘OLOQJQQU‘iibUJNi—‘O
`
`[\DNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`
`
`D. BROOKSTEIN
`
`D. BROOKSTEIN
`
`LOQJQO‘XCJ‘lkBUJNH
`wNi—‘OLOQJQQU‘iibUJNi—‘O
`
`LOQJQO‘XCJ‘lkBUJNH
`(flibUJNi—‘OLOQJQQU‘iibUJNi—‘O
`
`NNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`NNNNNNi—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘i—‘H
`
`them all.
`
`D. BROOKSTEIN
`I don't recall.
`
`Q. Other than the protective
`clothing fail issues you mentioned, did the
`product liability cases that you have been
`involved in related to clothin