The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Fleming's motion to strike certain paragraphs of the report of Escort's expert, Dr. John Grindon. The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.
Fleming seeks to preclude Dr. Grindon from testifying as to certain opinions contained in his expert report, specifically those opinions at paragraphs 21 to 50 and 53 to 108. These paragraphs cover separate topics, and the Court will group them together by topic for purposes of analysis.
One of Escort's defenses to Fleming's charge of infringement is that Escort's devices lock out false signals by using a process different from that described in Fleming's patents. Escort alleges that false signals are locked out of Fleming's invention when the device reaches a predetermined distance from the predetermined position of a false signal, but with Escort's devices, "the distance from a lockout varies." See Supplemental Report of Dr. Grindon (Dkt. No. 188-1) at p. 8.*fn1
Escort's expert, Dr. Grindon, concluded, among other things, that "the asserted claims of the '038 patent are not infringed" by Escort's devices. Id. at pp. 1-8. In his claim-by-claim analysis set forth in that Supplemental Report -- at paragraphs 21 through 42 -- he concludes that Escort's products do not infringe claims 1, 3, 5, 6, 7, 8, 23, 25, 26, and 27 of the '038 patent because those claims describe a device that locks out an alert if the device is a predetermined distance from a predetermined false signal, while with the Escort products, "the distance from a lockout varies." Id.
Dr. Grindon never explains how the Escort products lock out false signals. In its brief, Escort claims that Dr. Grindon -- in his Supplemental Report and through that Report's incorporation of Interrogatory Answers -- has identified the lines of source code that perform the function of locking out false signals on Escort devices, and that by identifying the source code, has explained how the Escort products function so that "the distance from a lockout varies." But there is no such explanation in Dr. Grindon's Supplemental Report. It is true that his Supplemental Report refers in a very general sense to Interrogatory Answers. That reference is as follows:
In addition . . . Escort's Supplemental Responses to Fleming Revised Seventh Set of Interrogatories sets forth in detail the relevant portions of source code in the accused devices which support my opinions about the missing elements in the asserted claims. Those citations to the source code are to be considered a part of this report and Exhibit C.
Id. at p. 8. Dr. Grindon says nothing further that might reveal how that source code supports his opinions. When the Interrogatory Answers themselves are examined, they are equally opaque. The Interrogatories Dr. Grindon is referring to asked Escort to "identify (by page and line number) the portion of [Escort's] source code for each Accused Infringing Product that corresponds to the claim element." See Exhibit A (Dkt. No. 195-1) at p. 3. Escort's typical answer looks like this:
Claim 1 -- generating an alert if the position of the device is not within a predetermined distance of a predetermined position (the '038 patent) Lines: 1901-1918
Lines: 3621-3627 Lines: 3665-3715 Lines: 4719-4899 Lines: 4924-4982 Lines: 8453-8474 Lines: 9979-10026 Lines: 10030-10047 See Exhibit A (Dkt. No. 195-1). By listing these lines of source code under a quote from a portion of claim 1 (relating to claim 1(c)), Escort is merely representing, in response to the Interrogatory query, that they "correspond to that claim element" -- that is, that they "correspond" to claim 1(c) of the '038 patent. There is no specific representation in the Interrogatory Answers -- or in Dr. Grindon's expert report -- that these particular lines of source code allow Escort products to function so that "the distance from a lockout varies." In other words, the connection between that specific opinion of Dr. Grindon and the above list is so vague as to be nonexistent.
But even assuming that these are the lines of code ensuring that "the distance from a lockout varies," Dr. Grindon fails to explain how these lines of code perform that function. That failure is significant: The source code itself is like a strange foreign language to a lay person, and its connection to Dr. Grindon's opinions must be explained by an expert to make any sense. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999) (noting the need for expert testimony to explain a possible causal connection between the defendant's exposure to ...