Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 1 of 11
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISON
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`RAVGEN, INC.,
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`Civil Action No. 6:20-cv-00692-ADA
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`Plaintiff,
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`JURY TRIAL DEMANDED
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`v.
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`PUBLIC VERSION
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`NATERA, INC. AND NSTX, INC.,
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`Defendants.
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`PLAINTIFF RAVGEN, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO
`STRIKE NATERA’S FED. R. CIV. P. 26(A)(2)(C) DISCLOSURE AND EXCLUDE
`TESTIMONY FROM DR, RYAN SWENERTON
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`PUBLIC VERSION OF DOCUMENT FILED UNDER SEAL
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`Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 2 of 11
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`TABLE OF CONTENTS
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`Pages
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`I.
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`DR. SWENERTON’S OPINIONS WERE NOT PROPERLY DISCLOSED. ...................1
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`1.
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`2.
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`Dr. Swenerton Was Specially Employed For His Experiments. .................1
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`The Disclosure Cannot Be Converted To A 26(a)(2)(B) Report. ................2
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`II.
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`DR. SWENERTON’S OPINIONS ARE IRRELEVANT AND UNRELIABLE. ..............3
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`Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 3 of 11
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Balfour Beatty Rail, Inc. v. Kansas City S. Ry. Co.,
`173 F. Supp. 3d 363 (N.D. Tex. 2016) (aff’d as modified) ........................................................4
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`Brown v. Illinois Cent. R. Co.,
`705 F.3d 531 (5th Cir. 2013) .....................................................................................................4
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`CQ, Inc. v. TXU Min. Co., L.P.,
`565 F.3d 268 (5th Cir. 2009) .....................................................................................................3
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`Geodynamics v. Dynaenergetics US, Inc.,
`2018 WL 4764315 (E.D. Tex. Sept. 30, 2018) ..........................................................................2
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`Haas Outdoors, Inc. v. Dryshod Int’l,
`2019 WL 8163676 (W.D. Tex. Oct. 11, 2019) ..........................................................................2
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`Knight v. Kirby Inland Marine, Inc.,
`482 F.3d 347 (5th Cir. 2013) .....................................................................................................5
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`LaShip, LLC v. Hayward Baker, Inc.,
`680 Fed. Appx. 317 (5th Cir. 2017) .......................................................................................1, 2
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`Ravgen, Inc. v. Lab’y Corp. of Am. Holdings,
`No. 6:20-cv-00969-ADA, D.I. 236 (W.D. Tex. Oct. 12, 2022).............................................1, 2
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`Siemens Med. Sols. USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc.,
`637 F.3d 1269 (Fed. Cir. 2011)..................................................................................................3
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`United States v. Williams,
`2021 WL 2819016 (5th Cir. 2021) ............................................................................................1
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`Rules
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`Fed. R. Civ. P. 26(a)(2)(B) ..............................................................................................................2
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`Fed. R. Civ. P. 26(a)(2)(C) ..........................................................................................................1, 2
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`TABLE OF EXHIBITS
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`Exhibits 1-4 cited herein are attached to Plaintiff Ravgen, Inc.’s Motion To Strike
`Natera’s Fed. R. Civ. P. 26(A)(2)(C) Disclosure And Expert Testimony From Dr. Ryan
`Swenerton, filed October 18, 2023 (Dkt. 349).
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`Natera’s Fed. R. Civ. P. 26(a)(2)(C) Disclosure (annotations added for clarity)
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`2
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`3
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`Excerpts from Deposition Transcript of Ryan Swenerton, taken on July 13, 2021
`(annotations added for clarity)
`Excerpts from Deposition Transcript of Ryan Swenerton, taken on October 13,
`2023 (annotations addedfor clarity)
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`4
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`Excerpts from Second Supplemental Expert Report of Brian Van Ness, Ph.D.
`Regarding U.S. Patent No. 7,332,277 (dated August 28, 2023) (annotations
`addedfor clarity) (from October 18, 2023 Declaration of Brian G. Van Ness,
`Ph.D.)
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`ill
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`Natera failed to properly disclose expert opinions of Dr. Ryan Swenerton, in contravention
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`of the law of this Court and the Fifth Circuit. Natera’s improper disclosure cannot be cured. And,
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`regardless of the format, Natera’s response confirms those opinions are irrelevant and unreliable.
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`I.
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`DR. SWENERTON’S OPINIONS WERE NOT PROPERLY DISCLOSED.
`1.
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`Dr. Swenerton Was Specially Employed For His Experiments.
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`Despite Natera’s four-page-attempt to paint the law here as unsettled, Natera is wrong. The
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`Fifth Circuit has found that “Rule 26(a)(2)(C) addresses the disclosure of expert witnesses who
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`were involved in the events leading up to litigation.” LaShip, LLC v. Hayward Baker, Inc.
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`(“LaShip II”), 680 Fed. Appx. 317, 324 (5th Cir. 2017) (aff’g LaShip, LLC v. Hayward Baker, Inc.
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`(“LaShip”), 296 F.R.D. 475, 483 (E.D. La. 2013)).1 This Court has wholly followed that finding:
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`A 26(a)(2)(C) witness’s opinion “must be based on facts or data obtained or observed in the course
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`of the sequence of events giving rise to the litigation.” Ravgen, Inc. v. Lab’y Corp. of Am. Holdings
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`(“LabCorp”), No. 6:20-cv-00969-ADA, D.I. 236 at 5 (W.D. Tex. Oct. 12, 2022) (citing LaShip.).
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`Natera’s contention that LaShip and its progeny only relate to “treating physicians,” is
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`demonstrably incorrect. Contrary to Natera’s claim that United States v. Williams is “the only
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`instance in which the Fifth Circuit has cited LaShip” and “viewed the LaShip decision as outlining
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`a rule for treating physicians,” (Opp. at 4 (emphasis in original)), the Fifth Circuit affirmed LaShip
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`itself, which is not about treating physicians but an engineer providing opinions about construction.
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`See LaShip II, 680 Fed. Appx. 317.2 And the cases Natera cites do not alter the rule affirmed in
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`LaShip II; they are (1) a magistrate opinion that does not cite any cases from this Circuit in its
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`evaluation of the witness’s disclosure, and (2) a case that is irrelevant because the party seeking to
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`1 Unless otherwise noted, internal quotations and citations are omitted and emphasis added.
`2 Ironically, rather than “observe[] that this question remains unsettled in this circuit,” the only
`thing that the Williams Court said was “unsettled” was LaShip’s applicability to treating
`physicians. See United States v. Williams, 2021 WL 2819016 at *3 (5th Cir. 2021).
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`1
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`exclude testimony never argued that a 26(a)(2)(B) report was required. See Geodynamics v.
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`Dynaenergetics US, Inc., 2018 WL 4764315 at *3 (E.D. Tex. Sept. 30, 2018); Haas Outdoors, Inc.
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`v. Dryshod Int’l, 2019 WL 8163676 at *5 (W.D. Tex. Oct. 11, 2019) (Trial Motion).
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`It is undisputed that Dr. Swenerton’s opinions relate to
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` and do “not equate to the ground-level opinion of an expert who was involved in the
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`events leading up to litigation.” See LaShip II, 680 Fed. Appx. at 324. Accordingly, Natera’s
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`Disclosure was improper and Dr. Swenerton’s opinions should be excluded. Id.; LabCorp at 5.
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`2.
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`The Disclosure Cannot Be Converted To A 26(a)(2)(B) Report.
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`Natera should not be permitted to cure its failure by proffering a 26(a)(2)(B) report. First,
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`contrary to Natera’s insistence that it was “substantially justified” in improperly believing a
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`26(a)(2)(C) Disclosure was appropriate because the law “remains unsettled,” as explained above,
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`this Court has held in no uncertain terms that 26(a)(2)(C) Disclosures cannot be used for opinions
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`formed for the purpose of litigation (LabCorp at 5) and the Fifth Circuit explained seven years ago
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`that such disclosures are reserved for “witnesses who were involved in the events leading up to
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`litigation.” LaShip II, 680 Fed. Appx. at 324. Second, Natera’s assertion that Dr. Swenerton’s
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`testimony is important is belied by the fact that none of Natera’s experts who offer opinions on
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`infringement, invalidity, or damages rely on Dr. Swenerton’s testing. Indeed, as explained in
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`Ravgen’s Motion and below, Dr. Swenerton’s opinions are irrelevant to the issues in the case.
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`Third, Natera is incorrect that “there is no harm to Ravgen” from Natera’s improper designation
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`because Ravgen deposed Dr. Swenerton. As just one example, the Disclosure lacked the “facts and
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`data considered” by Dr. Swenerton, who could not remember at deposition which documents he
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`reviewed to determine what Dr. Dhallan’s method was for the purposes of
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` See, e.g., Ex. 3 at 34:23-35:7; 106:13-24
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`2
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`). Ravgen was materially
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`prejudiced because “without any ability [] to examine the studies that formed the basis of Dr.
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`[Swenerton’s] opinions, there is clearly no principled way to test his recollection and opinion.”
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`Siemens Med. Sols. USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1286
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`(Fed. Cir. 2011). Fourth, a continuance will not cure the prejudice because Natera’s proposed
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`26(a)(2)(B) report still does not identify any documents Dr. Swenerton reviewed (See Opp., Ex. C
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`at 10) and “given the advanced stage of the litigation, permitting the new evidence [now] would
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`not [be] harmless.” See CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009).
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`Natera also cannot substitute its proposed expert report in place of its 26(a)(2)(C)
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`Disclosure because its proposed 26(a)(2)(B) report does not meet the rule’s requirements; it does
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`not contain “the facts or data considered” by Dr. Swenerton in forming his opinions. As explained
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`above, the report does not identify the literature Dr. Swenerton relied on to determine what Dr.
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`Dhallan’s method was. Additionally, although Dr. Swenerton testified that he considered many
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`pictures taken at different points of his experiments,
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` Ex. 3 at 166:24-169:2, 170:13-171:9. The remaining pictures do not appear in Natera’s
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`converted report and were not produced. See Opp., Ex. C. Thus, the “fundamental principle of
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`fairness” requires the exclusion of Dr. Swenerton’s report. See Siemens, 637 F.3d at 1286-87.
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`II.
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`DR. SWENERTON’S OPINIONS ARE IRRELEVANT AND UNRELIABLE.
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`Regardless of the format, the Court should exclude Dr. Swenerton’s opinions as irrelevant
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`and unreliable. First, Dr. Swenerton’s opinions are irrelevant, and Natera’s attempts to say
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`otherwise only highlight the irrelevant and highly prejudicial nature of those opinions. For
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`example, Natera asserts that Dr. Swenerton’s opinion is relevant to noninfringement because his
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`“testing demonstrates significant differences between the operation of the Streck Tubes (like those
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`used in the Natera test-at-issue) and formaldehyde-treated tubes (as claimed in the ’277 Patent).”
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`Opp. at 6. But Dr. Swenerton testified that he compared the accused products not to tubes “as
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`claimed in the °277 Patent,” but rater‘oa
`Pe See Ex. 3 at 106:13-24. At most, Dr. Swenerton
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`compared two alleged embodiments of a claim limitation to an aspect of the accused product, but
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`that type of noninfringement argumentis expressly prohibited by this Court. See D.I. 305, No. 18
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`(“The parties shall be precluded from introducing evidence, testimony, or argument for purposes
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`of non-infringement comparing the accused product or method to the preferred embodiments,
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`the specification, or any non-accused product or method.”). Moreover, Dr. Swenerton does not
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`opine on noninfringement, and neither of Natera’s experts who do so rely on his experiments.
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`Second, Dr. Swenerton’s opinions are unreliable because they are nothing more than his
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`ipse dixit in areas where he admittedly did not have expertise. See Mot. at 6-8.4 Dr. Swenerton fails
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`to cite any independent support for his conclusionsor his methodology andis thus unreliable. See
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`Brownv. Illinois Cent. R. Co., 705 F.3d 531, 536 (Sth Cir. 2013) (to be reliable, an expert must
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`“furnish[] some objective, independent validation of his methodology.”). Natera does not dispute
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`that Dr. Swenerton relied on only his unsupported assertions that his methodology was
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`“appropriate.” Instead, Natera misleadingly arguesthat “lack of textual support goesto the weight,
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`3 Dr. Swenertontestified
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`Ex. 3 at 108:25-109:2; 121:23-122:4.
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`Natera’s arguments that Ravgen “cherry-picks” portions of Dr. Swenerton’s testimony to show
`his lack of expertise
`. at 9) are incorrect and not well taken. Natera’s three chosen quotes to
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`show Dr. Swenerton
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`Natera cites to one portion of his answer to a question, while leaving out the first portion, which
`states
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`Moreover, at most, Dr. Swenerton stating
`is nothing more than a “commonsense review,” which Courts in the Fifth Circuit have found to
`be “overly simplistic” and “unhelpful.” See Balfour Beatty Rail, Inc. v. Kansas City S. Ry. Co.,
`173 F. Supp. 3d 363, 415 (N.D. Tex. 2016) (aff'd as modified).
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`Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 9 of 11
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`not the admissibility of the expert’s testimony.” Opp. at 8 (citing Knight v. Kirby Inland Marine,
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`Inc., 482 F.3d 347, 354 (5th Cir. 2013)). But in Knight, the Fifth Circuit said that “lack of textual
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`support may go to the weight,” only “where an expert otherwise reliably utilizes scientific
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`methods to reach a conclusion.” Id. at 354-55. The court continued, “[n]onetheless, the[]
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`testimony must be reliable at each and every step or else it is inadmissible,” and explained that
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`“courts must carefully analyze the studies on which experts rely for their opinions before
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`admitting their testimony.” Id. The Knight court upheld the exclusion of expert testimony based
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`on the unreliability of the expert’s underlying documents and because the methodology failed
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`several Daubert factors, including that it was not generally accepted, had not been subject to peer
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`review, published, or tested. Id. Here, in addition to failing to cite any underlying documents, Dr.
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`Swenerton, like the excluded expert in Knight, failed to show that his methodology was generally
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`accepted, peer-reviewed, published, or tested. Thus, Dr. Swenerton’s opinions should be excluded.
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`Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 10 of 11
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`Dated: November 8, 2023
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`By:
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`/s/ Kerri-Ann Limbeek
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`
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`
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`Deron R. Dacus
`State Bar No. 00790553
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Phone: (903) 705-1117
`Fax: (903) 581-2543
`ddacus@dacusfirm.com
`
`John M. Desmarais (pro hac vice)
`Kerri-Ann Limbeek (pro hac vice)
`Brian D. Matty (pro hac vice)
`Benjamin N. Luehrs (State Bar No. 440317)
`Kyle G. Petrie (pro hac vice)
`Joze Welsh (pro hac vice)
`Jun H. Tong (pro hac vice)
`Deborah J. Mariottini (pro hac vice)
`Gillian F. Moore (pro hac vice)
`Kevin Goon (pro hac vice)
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: 212-351-3400
`Facsimile: 212-351-3401
`jdesmarais@desmaraisllp.com
`klimbeek@desmaraisllp.com
`bmatty@desmaraisllp.com
`bluehrs@desmaraisllp.com
`kpetrie@desmaraisllp.com
`jwelsh@desmaraisllp.com
`jtong@desmaraisllp.com
`dmariottini@desmaraisllp.com
`gmoore@desmaraisllp.com
`kgoon@desmaraisllp.com
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`Attorneys for Plaintiff Ravgen, Inc.
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`Case 1:20-cv-00692-ADA Document 430 Filed 11/15/23 Page 11 of 11
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing sealed document and all attachments
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`thereto are being served via email on all counsel of record on this November 8, 2023.
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`/s/ Kerri-Ann Limbeek
`Kerri-Ann Limbeek
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