`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`F'REAL FOODS, LLC and
`RICH PRODUCTS
`CORPORATION,
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 16-41-CFC
`
`HAMIL TON BEACH
`BRANDS, INC. and HERSHEY :
`CREAMERY COMPANY,
`
`Defendants.:
`
`MEMORANDUM ORDER
`
`Defendants have filed a motion to exclude certain testimony of Plaintiffs'
`
`damages expert, Dr. Michael P. Akemann, and infringement expert, Dr. Daniel
`
`Maynes (D.I. 174). For the following reasons, I will deny in part and grant in part
`
`the motion.
`
`1. Defendants argue that "Dr. Akemann's lost profits opinion is based on
`
`assumptions that are purely speculative and contrary to record evidence" and that
`
`his "reasonable royalty opinion is unreliable and must be excluded because he fails
`
`to properly apportion value between the patented and unpatented features of the
`
`accused products." D.I. 175 at 2. Defendants do not challenge Dr. Akemann's
`
`knowledge, training, expertise, or even the facts underlying his opinions; they
`
`
`
`Case 1:16-cv-00041-CFC Document 240 Filed 04/11/19 Page 2 of 4 PageID #: 9727
`
`object instead to his methodology and assumptions and also to the particular facts
`
`in the record on which he relied in justifying his opinions. I find that Defendants'
`
`objections go to the weight, not the admissibility of Dr. Akemann's opinions.
`
`Defendants are free to challenge those opinions on cross-examination of Dr.
`
`Akemann at trial. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596
`
`(1993).
`
`2. Defendants seek to exclude Dr. Maynes' testimony to the extent it
`
`concerns the subject matters discussed in paragraphs 55-56, 60--65, 75-78, 80--81,
`
`83, and 115-19 of his opening expert report, and paragraphs 58-61, 69, 70-73, and
`
`184 of his rebuttal report. D.I. 175 at 24-26. As expert witnesses are not
`
`permitted to testify regarding "intent, motive, or state of mind, or evidence by
`
`. which such state of mind may be inferred[,]" Oxford Gene Tech., Ltd. v. Mergen
`
`Ltd., 345 F. Supp. 2d 431,443 (D. Del. 2004), I will preclude Dr. Maynes from
`
`testifying about the subject matters discussed in paragraphs 115-19 of his opening
`
`report and paragraphs 70-73 and 184 of his rebuttal report. As Dr. Maynes is
`
`proffered as an expert on infringement and validity, I will preclude him from
`
`testifying under Federal Rules of Evidence 702 and 403 about the subject matters
`
`discussed in paragraphs 55-56, 60--65, 75-78, 80--81, and 83 of his opening report
`
`and paragraphs 58-61, 69, and 70-73 of his rebuttal report. The matters discussed
`
`in those paragraphs have little if any probative value with respect to the
`
`2
`
`
`
`Case 1:16-cv-00041-CFC Document 240 Filed 04/11/19 Page 3 of 4 PageID #: 9728
`
`infringement or validity of the #662 patent, and Dr. Maynes never ties these
`
`matters to the technical analysis he offers and for which he has specialized
`
`knowledge. To the extent these paragraphs recite, as Plaintiffs argue, "certain facts
`
`that are not in dispute," D.I. 196 at 23, I find that having those facts introduced at
`
`trial through the testimony of Dr. Maynes should be excluded under Rule 403, as
`
`the testimony would waste time and needlessly present cumulative evidence and
`
`would unfairly prejudice the defense. Those facts should be presented through fact
`
`witnesses and/or documents.
`
`WHEREFORE, on this Eleventh day of April in 2019, IT IS HEREBY
`
`ORDERED that "Defendants' Motion to Exclude Testimony of Dr. Michael P.
`
`Akemann and Daniel Maynes, Ph.D." (D.I. 174) is GRANTED IN PART AND
`
`DENIED IN PART:
`
`1. Defendants' motion is DENIED with respect to the testimony of Dr.
`
`Michael P. Akemann.
`
`2. Defendants' motion is GRANTED insofar as it seeks to preclude Dr.
`
`Daniel Maynes from testifying about the subject matters discussed in paragraphs
`
`55-56, 60-65, 75-78, 80-81, 83, and 115-19 of his opening expert report and
`
`paragraphs 58-61, 69, 70-73, and 184 of his rebuttal report.
`
`3
`
`
`
`Case 1:16-cv-00041-CFC Document 240 Filed 04/11/19 Page 4 of 4 PageID #: 9729
`Case 1:16-cv-00041-CFC Document 240 Filed 04/11/19 Page 4 of 4 PageID #: 9729
`
`IT IS SO ORDERED.
`IT IS SO ORDERED.
`
`CONNOLLY, UNITED éATES DISTRICT JUDGE
`
`CONNOLLY, UNTTEDATES DISTRICT JUDGE
`
`4
`
`
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