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District Court Declines to Exclude Damage Expert Even Though Expert Relied Upon Information Not Disclosed During Discovery

Plaintiffs Equistar Chemicals, LP and MSI Technology, LLC accused Westlake Chemical Corporation (“Westlake”) of infringing U.S. Patent No. 7,064,163. The asserted patent relates to a method of making polyolefin-based adhesive resins used for bonding to or bonding together polyolefins and polar materials. Westlake retained Christopher Bakewell as a damages expert, and Plaintiffs asserted that Bakewell relies on information that was not produced during discovery in his expert report, particularly on pound estimates for PE processing. Plaintiffs contended that Bakewell’s report improperly relie upon private conversations concerning non-infringing alternative costs.

Westlake responded that Plaintiffs’ motion does not challenge Mr. Bakewell’s methodology and Plaintiffs’ arguments are more appropriately addressed through cross-examination of Mr. Bakewell. According to Westlake, Plaintiffs’ discovery requests did not include requests related to toll compounding or outsourcing and Plaintiffs did not serve a Rule 30(b)(6) deposition topic on toll compounding or outsourcing.

The district court agreed with Westlake that the Plaintiffs were not challenging the experts qualifications or experience. “The alleged deficiencies raised by Plaintiffs in the Daubert motion focus on whether Westlake properly disclosed information relied on by Mr. Bakewell during discovery and whether Mr. Bakewell considered all evidence in the record concerning toll compounding costs and PE processing costs. Plaintiffs’ arguments do not show that Mr. Bakewell conducted a methodological error.”

As a result, the district court concluded that the expert could testify and the jury would be free to evaluate his testimony under cross-examination. “Evaluation of the sufficiency and weight of his testimony will ultimately be resolved by the jury. Plaintiffs will have ample opportunity to expose any perceived deficiencies in Mr. Bakewell’s opinions through the use of vigorous cross-examination.”

“Mr. Bakewell’s opinions are sufficiently reliable and relevant to be helpful to the finder of fact and to warrant admission at trial. United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010). Mr. Bakewell’s testimony will assist the trier of fact as required by FED. R. EVID. 702. Mr. Bakewell is qualified to testify as an expert in this case and Westlake has shown his testimony to be sufficiently reliable as required by Daubert and FED. R. EVID. 702. Mr. Bakewell’s opinions are based upon sufficient facts or data, are the product of reliable principles and methods and are the result of applying those principles and methods reliably to the facts of the case.”

Equistar Chemicals, LP v. Westlake Chemical Corp., Case No. 6:14-CV-68 (E.D. Tex. Feb. 26, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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