Alexam, Inc. v. Barnes & Noble, Inc., Nos. 2:13-cv-00003-08-MHS-CMC, slip op. (E.D. Tex. May 28, 2013).
Applying the notion that rejecting expert testimony is the exception rather than the rule, a magistrate judge in Alexam encouraged vigorous cross-examination of allegedly shaky expert opinions. The court found opinions on non-infringing alternatives, when based on opinions from another expert, were damages related and did not constitute opinions outside the area of expertise.
Plaintiff Alexam sought to exclude the opinion of Defendants’ damages expert, Michele M. Riley. Id. slip op. at 2. While not disputing her qualifications as a damages expert, Plaintiff asserted Riley was improperly testifying to technical opinions outside of her expertise. Id. slip op. at 3, 4-5.
Defendants countered, arguing (1) Riley was merely providing opinions regarding the presence of non-infringing alternatives as a counter to Plaintiff’s expert, and (2) Riley relied on a technical expert in order to gain an understanding of the technology. Id. slip op. at 6.
Denying the motion, the magistrate judge held: (1) Riley’s opinions were offered to rebut Plaintiff’s expert; (2) Riley properly relied on another expert to gain an understanding of the patented technology; and (3) Riley’s opinions were within the scope of her expertise and had a proper basis. Id. slip op. at 6. Since rejecting expert testimony is the exception rather than the rule, Plaintiff could cross examine Riley to point out possible weaknesses in her opinions. Id.