Expert Or Not? Save It For Your Cross Examination

Asetek Danmark A/S v. CMI USA, Inc, Case No. 13-457 (Judge Jon Tigar)

Judge Tigar's recent refusal to exclude expert testimony reinforces the Northern District's liberal approach (based on Ninth Circuit precedent) to admissibility under FRE 702. Before the Court was Asetek's motion to exclude the expert testimony of Dr. Gregory Carman because he did not have experience specific to computer liquid cooling, the technology of the patents. Judge Tigar quickly disposed of the motion, finding that Dr. Carman has "sufficient relevant technical expertise" to satisfy the Ninth Circuit's "broad conception of expert qualifications" (emphasis in original).

In reaching his decision, Judge Tigar reminds us that "an expert is permitted wide latitude to offer opinions," citing cases holding that "shaky but admissible evidence is to be attacked... not exclu[ded]" and "[t]o testify as an expert in a patent case, and individual 'need not be officially credentialed in the specific matter under dispute.'" Next, Judge Tigar compared the subject matter of the two patents-in-suit to Dr. Carman's technical background. Here, the asserted patents relate to devices that use liquid to cool computer components. Although Dr. Carman had never worked specifically on liquid-based computer cooling, as Judge Tigar noted, he possesses a Ph.D. in Engineering Mechanics, is versed in the field of thermodynamics, has long worked in UCLA's Mechanical Aerospace Engineering Department, and even holds a pair of patents on thermal exchange systems.

Judge Tigar thus "easily distinguished" Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1358 (Fed. Cir. 2008), in which the court found it inappropriate to admit attorney opinion in the "absence of any suggestion...