The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:18-CV-00009-BO
TRUDELL MEDICAL INTERNATIONAL, )
Plaintiff,
V. ORDER
BURTON HEALTHCARE LLC,
Defendant.
This matter is before the Court on plaintiff's renewed motion for judgment as a matter of
law pursuant to Fed. R. Civ. P. 50(b) or, in the alternative, a new trial pursuant to Fed. R. Civ. P.
59(a). [DE 313]. Defendant responded, and plaintiff replied, and the matter is ripe for disposition.
For the reasons that follow, plaintiff's motion is denied.
BACKGROUND
The Court dispenses with a full recitation of the background of this case and presumes
familiarity with its factual and procedural history. Trudell has a patent describing a portable
respiratory device that provides oscillating positive expiratory pressure therapy to help remove
excess mucus from airways. Trudell sued Burton for allegedly selling a device (the “vPep’”) that
infringed on its patent. On November 7, 2022, a jury trial commenced in Elizabeth City, North
Carolina. Trudell presented evidence, including the testimony of Dr. Durgin, who was qualified as
an expert witness. Burton presented evidence, including expert witness testimony from Dr. Collins
and lay testimony from Mr. Lau, the head of D R Burton Healthcare LLC. Defendant’s counsel
presented the jury with actual samples of the vPep to show how it differed from the patent. At the
close of Burton’s evidence, Trudell moved for judgment as a matter of law, which was denied. The
Court held a charge conference, the parties made closing arguments, and the Court instructed the
jury on the applicable law. After deliberating for two hours, the jury returned its verdict: the patent
was valid, but there was no infringement. Now, Trudell asks the Court to reverse the jury’s verdict
pursuant to Fed. R. Civ. P. 50(b). Alternatively, Trudel! asks for a new trial pursuant to Fed. R.
Civ. P. 59(a).
DISCUSSION
I. Judgment as a matter of law
Fed. R. Civ. P. 50(b) provides that, upon a party’s renewed motion for judgment as a matter
of law after the denial of such a motion during trial, a court may (1) allow judgment on the verdict,
(2) order a new trial, or (3) direct the entry of judgment as a matter of law. Fed. R. Civ. P. 50(b).
“{W]hen a jury has returned its verdict, a court may grant judgment as a matter of law only if,
viewing the evidence in a light most favorable to the non-moving party and drawing every
legitimate inference in that party’s favor, the court determines that the only conclusion a reasonable
jury could have reached is one in favor of the moving party.” Saunders v. Branch Banking And Tr.
Co., 526 F.3d 142, 147 (4th Cir. 2008) (citing Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir.
2002)). A court is not permitted to weigh the evidence or evaluate the credibility of the witnesses
when deciding on a Fed. R. Civ. P. 50(b) motion. Bresler v. Wilmington Tr. Co., 855 F.3d 178,
196 (4th Cir. 2017). “As [Trudell] bore the burden of proof on the question of literal infringement,
to be entitled to judgment as a matter of law it must establish that the evidence was not only
sufficient to meet this burden, but is overwhelming, leaving no room for the jury to draw
significant inferences in favor of the other party.” Radtke v. Lifecare Mgmt. Partners, 795 F.3d
159, 165-66 (D.C. Cir. 2015); see Precision Fabrics Grp., Inc. v. Tietex Int'l, Ltd., 367 F. Supp.
3d 487, 499 (D.S.C. 2019).
Juries in patent cases are put in a unique position given the highly complex nature of the
subject matter. Some juries will understand the underlying technical claims, but many will
struggle. A jury must attempt to weigh the evidence, but a jury is not unreasonable for struggling
to comprehend dense technical evidence.! Instead, counsel must present the evidence clearly. If
counsel fails to do so and the jury cannot understand the evidence, the jury may reasonably give
that evidence less weight. Therefore, when the party with the burden of proof fails to present
evidence clearly, a jury may reasonably return a verdict that the party failed to meet the burden of
proof. See Radtke, 795 F.3d at 165-66.
Trudell requested a jury trial and presented the jury with a voluminous record of techniical
evidence. After being steeped in this case for years, this evidence may have seemed straightforward
to Trudell, but the evidence was highly complicated. This jury earnestly attempted to understand
the evidence, but drawing every legitimate inference in favor of the non-moving party, the Court
finds that Trudell did not present the evidence clearly. Without the aid of a clear presentation, the
jury was unable to comprehend such complicated evidence. And as a result, the jury did not fully
understand Trudell’s evidence and reasonably found Trudell had not carried its burden to prove
infringement.
After meticulously citing the record, Trudell argues that “no reasonable jury could have
found non-infringement from the record evidence.” [DE 314 at 12]. Butthe jury was not required
to decrypt the record to uncover Trudell’s “strong case of infringement.” Perhaps the raw evidence
contained enough for a jury to find infringement, but all that evidence meant very little because it
' The Third Circuit has found that there are factual and legal concepts in a case that might be so complex so that any
resolution by a jury would violate due process of law. /n re Japanese Elec. Prod. Antitrust Litig., 631 F.2d 1069, 1084
(3d Cir. 1980). However, Trudell does not raise that argument, so the Court need not consider it.
was not presented clearly.” Thus, the jury reasonably found Trudell did not carry its burden to
prove infringement, and Trudell’s motion for a judgment as a matter of law is without merit.
II. New trial
In the alternative, Trudell motions for a new trial pursuant to Fed. R. Civ. P. 59(a). A
motion for a new trial must be granted where ‘‘(1) the verdict is against the clear weight of the
evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice,
even though there may be substantial evidence which would prevent the direction of a verdict.”
Atlas Food Sys. & Servs., Inc. v. Crane Nat. Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996). This
Court is permitted to weigh the evidence and consider the credibility of the witnesses when
deciding a motion for a new trial. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).
The decision to order a new trial is within the trial court’s discretion. Whalen v. Roanoke Cnty. Bd.
of Sup rs, 769 F.2d 221, 226 (4th Cir. 1985).
Trudell renews its argument that the jury verdict was against the clear weight of the
evidence. But the Court has already dispatched that argument. Trudell’s main argument is that this
Court’s errors caused a miscarriage of justice, requiring a new trial. Specifically, Trudell points to
the Court’s statements and the admission of Dr. Collins’ testimony. First, Trudell has failed to
show that the alleged errors were actually errors. Second, Trudell does not connect the alleged
errors with a miscarriage of justice.
(1) Court’s statements
The Court has broad discretion to address witnesses and the jury. Trudell complains that
the Court called its witness’s testimony “painful” and questioned its relevance in the jury’s
> The evidence was not one-sided as plaintiff suggests. During trial, the parties presented conflicting testimony
regarding what qualified as a “vane.” This Court will not revisit these esoteric issues but finds that defendant offered
alternative ways for the jury to interpret of the evidence.
presence. Trudell also asserts the Court improperly “bifurcated” Trudell’s case in chief by
addressing the witness. The Court’s statements were not error. When testimony 1s irrelevant, the
Court may guide the witness back on track. Fed. R. Evid. 611(a)(1). Trudell cites no authority to
the contrary, and even if it had, Trudell failed to show it suffered any prejudice.
In this civil case, it is within the Court’s discretion to set time limits on the parties’
presentation of evidence and inform the jury of the timeline. When describing the jury’s expected
time commitment, the Court said that it expected the jury to begin deliberation by the end of the
week. Trudell argues the Court put undue pressure on the jury to reach a verdict when it “[told]
the jury that the trial ‘would certainly finish this week, if not sooner,’ 7.e., in less than 4 days.” [DE
314 at 17]. When read in context, the Court’s statement was more nuanced than Trudell suggests.
And besides, Trudell cites no authority supporting the proposition that informing the jury how long
the trial may last equates to undue pressure on the jury’s deliberation. Instead, plaintiff cites Witco
Chem. Corp. v. Peachtree Doors, Inc., 787 F.2d 1545 (Fed. Cir. 1986), a case in which the Federal
Circuit found the district court improperly dismissed a deadlocked jury only to recall them six
weeks later with instructions to reach a decision. It is axiomatic that those facts are inapplicable to
this case.
Trudell complains that the Court was “disinterested” and “[suggested] no interest in the
relevant physics/science applicable to the technology at issue.” Without logical or legal
explanation, this claim deserves no further analysis. Trudell also claims the Court advised the
parties of the right to “take this case up to the Federal Circuit and/or Washington D.C. for
3 When referring to the parties’ presentation of the evidence, the Court said, “I don’t have any strong control over
that. I have some control over that. But I would say we would certainly finish this week, if not sooner.” [DE 315
33:15-17].
resolution.” Trudell does not explain why advising the parties of their right to appeal warrants a
new trial.
Trudell argues that the Court committed a procedural error when it failed to notify counsel
of the exact instructions it planned to read to the jury. Again, Trudell cites no authority supporting
their contention that it is entitled to a verbatim copy of the jury instructions. In the charge
conference, the Court informed the parties that it would use a combination of both parties’ jury
instructions. Trudell may not have known the precise language the Court would read to the jury,
but it fails to show this caused prejudice (such as by leading Trudell to give a closing argument
that conflicted with the final instructions). In the absence of prejudice, any alleged procedural error
was harmless. Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist Church, 733
F.3d 722, 732 (7th Cir. 2013). Trudell also argues the Court improperly instructed the jury. As of
the date of this order, Trudell has not identified any specific errors that had a reasonable probability
of affecting the jury’s verdict.*
(2) Dr. Collins’s testimony
Trudell argues it deserves a new trial because this Court erred in allowing Burton’s expert
witness (Dr. Collins) to testify. When a new trial is sought based on a purported evidentiary error
by the district court, a verdict may be set aside only if an error is so grievous as to have rendered
the entire trial unfair. United States Equal Emp. Opportunity Comm'n v. Consol Energy, Inc., 860
F.3d 131, 145 (4th Cir. 2017). Trudell argues that without Dr. Collins’ testimony, the testimony of
their expert witness (Dr. Durgin) would have been unrefuted. Therefore, no reasonable jury could
have returned a verdict of non-infringement.
4 Trudell identifies one allegedly erroneous instruction regarding damages, but there were no damages because there
was no infringement. Therefore, that alleged error was harmless.
This argument is flawed because the jury, not the Court, determines whether an expert is
credible and whether the expert’s opinions are correct. Syngenta Crop Prot., LLC v. Willowood
Azoxystrobin, LLC, 267 F. Supp. 3d 649, 655 (M.D.N.C. 2017). The opinion of an expert witness
is not conclusive or binding on the factfinder, even if it is unrefuted. Robinson v. Worley, 540 B.R.
568 (M.D.N.C. 2015). Therefore, this jury was not required to find Dr. Durgin’s testimony credible
and thus was not bound to return a verdict consistent with his expert opinion.
On direct, Dr. Durgin attempted to explain infringement using highly complicated charts
and figures. As discussed supra, it is reasonable to infer the jury found this presentation
incomprehensible. The jury was free to disbelieve Dr. Durgin’s testimony, particularly based on
defendant’s cross-examination, which highlighted some inconsistencies in his testimony.
Precision Fabrics Grp., Inc. v. Tietex Int'l, Ltd., 367 F. Supp. 3d 487, 499 (D.S.C. 2019). Given
Dr. Durgin’s esoteric testimony and the cross-examination, the jury could have reasonably given
his testimony little weight. Thus, even assuming the admission of Dr. Collins’s testimony was
error, it was not so grievous to have rendered the entire trial unfair.
However, the admission of Dr. Collins’s testimony was not error. Trudell argues Dr.
Collins’s testimony should have been excluded because he “never prepared any written expert
report on non-infringement as required under Rule 26(a)(2)(B) and (D).” District courts are
accorded “broad discretion” in determining whether a party’s nondisclosure or untimely disclosure
of evidence is substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th
Cir. 2014). In making this determination, the Court is guided by the following factors:
(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial;
(4) the importance of the evidence; and
(5) the nondisclosing party’s explanation for its failure to disclose the evidence.
S. States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003). Considering those factors, the Court reaffirms its decision to allow Dr. Collins’s testimony.
After hearing a motion in limine on the matter, the Court “reserve[d] a ruling on that until the end
of plaintiff's case. . .” [DE 315 at 8:25-9:1]. Indeed, the Court did just that, putting Trudell on
notice that Dr. Collins might testify. Dr. Collins provided a sworn declaration summarizing large
portions of his testimony. Trudell had previously deposed Dr. Collins and had the opportunity to
cross examine him at trial. As a result, the Court was within its discretion to allow Dr. Collins’s
testimony.
Trudell accuses defense counsel and various witnesses of making several statements that
prejudiced the jury and entitle it to a new trial. [DE 314 at 21-22]. Without logical explanation or
legal citation, Trudell’s conclusory statements warrant no further analysis.
Seeing no evidence of “a miscarriage of justice,” the Court denies the motion for a new
trial. Uzoukwu v. Metro. Washington Council of Governments, No. 11-CV-00391 (CRC), 2017
WL 4712077, at *1 (D.D.C. July 11, 2017).
CONCLUSION
For the foregoing reasons, plaintiff's motion [DE 313] is DENIED.
SO ORDERED, this__{ day of March, 2023.
enue tf “gt
T NCE W. BOYLE
UNITED STATES DISTRICT JUDG