Case 6:12-cv-00799-JRG Document 260-1 Filed 01/26/15 Page 1 of 4 PageID #: 9450
`Case 6:12—cv—00799—JRG Document 260-1 Filed 01/26/15 Page 1 of 4 Page|D #: 9450
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`EXHIBIT A
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`EXHIBIT A
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`

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`Case 6:12-cv-00799-JRG Document 260-1 Filed 01/26/15 Page 2 of 4 PageID #: 9451
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`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
`
`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
`
`January 26, 2015
`
`The Honorable Rodney Gilstrap
`U.S. District Court for the Eastern District of Texas
`211 W. Ferguson
`Tyler, Texas 75702
`
`Re:
`
`C.A. No. 6:12-cv-799-JRG; Invensys Systems, Inc. v. Emerson Electric Co., et al.
`
`Dear Judge Gilstrap:
`
`Invensys requests permission to file a motion to strike and exclude: 1) the opinion
`testimony of Defendants’ survey expert Dr. Blair, and 2) the survey itself as irrelevant and
`unreliable.1 Dr. Blair surveyed Micro Motion customers regarding why they chose the brand and
`model of their most recent Coriolis flowmeter purchase and what other brands they considered.
`In Dr. Blair’s opinion, the results of that survey suggest there was not a two supplier market for
`the Accused Products and that no customer identified two phase flow as a reason for that
`purchase (which another expert, Dr. Ugone, relies upon for his opinions regarding limited market
`demand). Dr. Blair’s survey was flawed because it did not collect data in a methodologically
`sound fashion, and failed to ensure that the data gathered was reliable. Moreover, his opinion is
`not relevant to the patented technology, timeframe and market segment at issue in this case.
`Finally, Dr. Blair’s opinion is based upon a “black box” data set—Dr. Blair refused to provide
`access to the underlying survey data, both before and during his deposition.
`
`I.
`
`Blair’s Two-Supplier Market Opinion Is Not Relevant to the Market Segment.
`
`There is too great an analytical gap between Dr. Blair’s conclusion that there is not a two-
`supplier market for two-phase flow measurement and the survey responses. The respondents
`who identified that they may have “considered” Coriolis flowmeter suppliers other than Invensys
`and Emerson were not limited to the respondents who had purchased Coriolis flowmeters with
`two-phase flow capability (e.g., entrained gas, empty-to-full, batching, or slug flow – the
`capability that defines the market segment that Emerson/Micro Motion and Invensys occupy).
`Accordingly, Dr. Blair’s survey does not provide any information about what entities supply
`Coriolis flowmeters in the relevant two-phase flow market segment.
`
`1 Under the Federal Rules of Evidence, expert testimony is only admissible if it is relevant and
`reliable See, e.g., Daubert v. Merrell Dow Pharm, 509 U.S. 599 (1993); General Electric v.
`Joiner, 522 U.S. 136 (1997) (evidence properly excluded when there is too great an analytical
`gap between the methodology and opinions offered and when the connection between the
`opinion and the data is the ipse dixit of the expert).
`
`

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`Case 6:12-cv-00799-JRG Document 260-1 Filed 01/26/15 Page 3 of 4 PageID #: 9452
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Two
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`Second, a customer might “consider,” at the outset of the purchasing process, many
`brands that are ultimately rejected because they do not meet the customer’s needs. For example,
`a customer with a two-phase flow problem might “consider” purchasing a certain Coriolis
`flowmeter, until the customer learns that the supplier does not have a two-phase solution.
`Tellingly, the survey did not ask if the other suppliers the respondents “considered” provided a
`flowmeter with two-phase flow measurement and control capability—probably because
`Defendants understood that such a survey question would undermine their arguments.2
`
`II.
`
`Dr. Blair Subjectively Grouped the Survey Responses into Categories That Are Not
`Mutually Exclusive Of Each Other Or the Patented Technology.
`
`Dr. Blair’s survey subjectively grouped the responses to the open question “What are all
`the reasons why your company or facility selected the particular brand and model it did?” into
`categories. These categories were unknown to the survey respondents and no follow up to
`determine what the respondent’s answers meant was conducted. However, at least four of the
`nine categories chosen by Dr. Blair used descriptors like “reliability, accuracy and fit for
`purpose” that can easily refer to characteristics of the patented two-phase flow measurement and
`control technology at issue in the case. Significantly, Dr. Blair admitted in his deposition that
`several of the categories could describe Invensys’s patented two-phase flow technology.
`
`Moreover, because reliability, accuracy and fit for purpose are proxies for “two-phase
`flow,” creating a separate category for two-phase flow wrongly suggests it is mutually exclusive
`of his other categories. Thus Dr. Blair cannot know (and did not ask) if respondents were
`identifying two-phase flow as a reason for purchasing the meter when answering reliability,
`accuracy or fit for purpose. As such, Dr. Blair’s statement that “[n]o respondent specifically
`mentioned ‘two-phase flow’” cannot support a conclusion that no respondents identified two-
`phase flow nor (as Dr. Ugone concludes based on Dr. Blair’s work) that there is no demand for
`the patented technology.
`
`III.
`
`The Data Collection Process Was Unreliable And Did Not Ensure Collection of
`Validated Data.
`
`Dr. Blair’s validation process consisted of a call to the customer’s receptionist, asking to
`be directed to someone who knew about the company’s Coriolis flowmeter selection process and
`then asking that person if he or she knew about how Coriolis flowmeters were selected. This
`
`2 Other issues include inappropriately biasing the random sample set by excluding significant
`purchasers in one of the primary industries in the two-phase flow market segment, making the
`results unreliable and irrelevant.
`
`

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`Case 6:12-cv-00799-JRG Document 260-1 Filed 01/26/15 Page 4 of 4 PageID #: 9453
`
`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Three
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`process was not sufficient to ensure that the interviewee was actually a person with the requisite
`knowledge to answer the survey questions. For example, the survey and the phone call records
`do not identify the interviewee’s job responsibilities or position. Moreover, Dr. Blair’s failure to
`validate the interviewee’s capability to answer stands in stark contrast to market research studies
`conducted by Micro Motion while developing the infringing technology in 2004-2005, which
`asked respondents to identify his or her job title and functional responsibility in separate
`questions and produced inconsistent results from Dr. Blair’s.
`
`IV.
`
`Dr. Blair’s Survey Does Not Address Historical Timeframes Relevant To Damages
`
`Dr. Blair’s survey only asked questions about the respondents’ most recent Coriolis
`flowmeter purchase, and it did not ask any questions regarding purchasing decisions before
`infringement began or earlier in the damages period. Therefore it is not relevant to a “but for”
`determination.
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`V.
`
`Dr. Blair Refused to Provide the Data Underlying His Survey, Which Is Necessary
`for Invensys to Fully Assess His Conclusions and Methodology.
`
`Dr. Blair and Defendants’ counsel refused repeated requests for the contact information
`of the people he interviewed.3 Invensys needs this information to conduct its own independent
`interview to test the veracity of the survey results. See Sharp v. Chase Manhattan Bank USA,
`N.A. (In re Commercial Fin. Servs., Inc.), Bkr. No. 98-5162-R, 2005 WL 6725897, at *12-14
`(Bkr. N.D. Okla. May 10, 2005); U.S. Surgical Corp. v. Orris, Inc., 983 F. Supp. 963, 970 (D.
`Kan. 1997). Defendants’ refusal to provide it is sufficient basis for striking Dr. Blair’s report.
`See Sharp, 2005 WL 6725897, at *13, 14 (quoting Nguyen v. IBP, Inc., 162 F.R.D. 675, 681 (D.
`Kan. 1995). Dr. Blair’s assertion of an alleged ethical obligation precluding disclosure is also
`meritless.
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`For the foregoing reasons, Invensys requests permission to file a motion to strike Dr.
`Blair’s expert report and exclude his testimony.
`
`Respectfully submitted,
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`
`cc:
`
`All Counsel of Record (via ECF)
`
`3 Dr. Blair admitted that without the names of the individuals and the corresponding ID number,
`there was not a way to match specific responses with particular respondents.