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Daubert Motion Denied Where Defendant Had “Salubrious Fodder” for Cross-Examination If Plaintiff’s Expert Used Wrong Source Code

Defendant Adobe Systems (“Adobe”) filed a Daubert motion seeking to limit the testimony of plaintiff EveryScapes’ expert, Dr. Maja Bystrom (“Dr. Bystrom”), for three reasons.

First, Adobe sought to exclude the testimony that the Mok3 Perspective Clone Brush practiced claims of EveryScape’s patent, partly because Dr. Bystrom allegedly relied on the wrong source code in reaching her opinions about Mok3. As explained by the district court, “[t]he admission of expert testimony, as the parties are well aware, is within the sound discretion of the trial court. Newell Puerto Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 20 (1st Cir. 1994). “[C]ourts must be cautious – except when defects are obvious on the face of a proffer – not to exclude debatable scientific evidence without affording the proponent… adequate opportunity to defend its admissibility.” Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 188 (1st Cir. 1997).”

In addition, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993).

The district court then concluded that cross-examination would be sufficient. “If Dr. Bystrom used the wrong source code for her analysis of Mok3, Adobe has salubrious fodder for its cross-examination. The court, however, is not convinced that Dr. Bystrom in fact used the wrong source code and, moreover, is of the view that her Mok3 analysis finds support elsewhere in her expert report. If the court is proved wrong in this regard, a ruling on a motion in limine is not conclusive on the issue of the reliability of expert opinion evidence, the validity of which is open to attack by the opponent at trial before the trier of fact.”

Second, Adobe moved to limit Dr. Bystrom’s “technical analysis to the Clone Stamp tool and exclude any testimony regarding the Marquee tool, which Adobe contends was beyond the scope of her charge and is essentially unmentioned in her expert report.” On the Marquee tool, the district court found that Adobe’s position had merit. “As the court has made consistently clear in any number of contexts, it takes Rule 26 seriously. If an expert has failed to disclose an opinion in her report, that opinion is not admissible and will not be admitted at trial (unless elicited by the party-opponent).”

Third, Adobe moved to bar Dr. Bystrom from offering opinions “as to Adobe’s intent and state of mind with respect to the issue of inducing infringement.” On this issue, the district court stated it would “not, on appropriate objection (as it has previously ruled), permit Dr. Bystrom to testify to Adobe’s subjective intent or state of mind.” However, “[i]nsofar as Dr. Bystrom proposes to testify to her unadorned opinion that the practice of Adobes instructional materials enables an infringer, her testimony to that effect will be allowed.”

Accordingly, the district court granted and denied the motion in part.

EveryScape, Inc. v. Adobe Systems Incorporated, Case No. 1-10-cv-11597 (D. Ma. Nov. 26, 2014)

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