The plaintiffs, Fieldturf USA and Tarkett Inc. (collectively, "Fieldturf") filed a patent infringement action against Astroturf LLC ("Astroturf"). In defense, Astroturf intended to present expert testimony on anticipation showing that certain Fieldturf technical information predated the patent-in-suit.

Based on the technical information, Astroturf's expert created replicas of the fields and he then used multiple techniques to measure the infill depth. Before trial, Fieldturf filed a motion in limine that sought to exclude the replicas, contending that Astroturf made most of the decisions regarding the replicas' size and materials, and directly participated in the replicas' creation. Fieldturf also argued that the replicas did not control for multiple factors -- such as the weight and density of the carpet, whether the sand and rubber was laid in separate layers or as a mixture, the size of rubber particles, and humidity -- that impact the infill depth.

The district court had previously appointed a discovery master to address the parties' motions in limine and the discovery master filed a report and recommendation advising the Court to allow the replicas as "demonstrative aids." In addition, the discovery master recommended that the district court conduct a preliminary evidentiary hearing outside of the presence of the jury to determine whether the replicas are admissible to prove anticipation.

The district court found that a separate evidentiary hearing was not necessary. "Instead, Astroturf is ordered to examine Kolitzus [Astroturf's expert] in front of the jury. His testimony must include a proper foundation for the techniques that Kolitzus used to create and measure the replicas. Fieldturf will then have the opportunity to cross-examine Kolitzus and point out the infirmities it identified in its brief. At the end of the examination, the Court will determine whether Kolitzus's testimony lays a sufficient foundation and is reliable under Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). If it satisfies those standards, the replicas will be admitted as evidence of anticipation. If it fails to satisfy the standards, the Court will issue a contemporaneous instruction to the jury to disregard Kolitzus's testimony on the replicas."

The district court also precluded Astroturf from referencing the replicas in its opening statement. However, "[i]f the Court admits the replicas as evidence of anticipation, Astroturf may reference the replicas in its closing arguments."

Fieldturf USA v. Astroturf LLC, Case No. 10-CV-12492 (E.D. Mich. Sept. 17, 2015)