OPTOLUM INC. v. CREE INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

OPTOLUM, INC. )

)

Plaintiff, )

)

v. ) 1:17CV687

)

CREE, INC., )

)

Defendant. ) FILED UNDER SEAL

MEMORANDUM OPINION AND ORDER

ADDRESSING EXPERT WITNESS AND DAUBERT MOTIONS

(Docs. 193, 197, 199)

OSTEEN, JR., District Judge

Presently before this court are Defendant Cree, Inc.’s

(“Cree”) motion to exclude certain testimony of William B.

Scally, (Doc. 193); Defendant Cree’s motion to exclude certain

testimony of Charles McCreary, (Doc. 197), and Plaintiff

OptoLum, Inc.’s (“OptoLum”) motion to exclude certain testimony

of Dr. Eric Bretschneider, (Doc. 199). Although these issues may

be moot as a result of the jury’s verdict, the parties are

entitled to consider this court’s reasoning in full for purposes

of any Motion for Judgment as a Matter of Law or appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and Defendant are companies that produce lighting

products using light-emitting diodes (“LEDs”). (Amended

Complaint (Doc. 32) ¶¶ 12, 20, 22-23, 29.)1 Plaintiff seeks to

enforce U.S. Patents 6,831,303 (the “‘303 Patent”), and

7,242,028 (the “‘028 Patent”) in this action (together, the

“Patents”). (Id. ¶¶ 25-27.)

Both parties plan to present evidence at trial through

expert witnesses. Relevant to this order, Plaintiff has offered

William Scally as an expert on a reasonable royalty for

Defendant’s alleged infringement. (Scally Report (Doc. 299).)

Plaintiff has also offered Charles McCreary as an expert to

testify about Defendant’s alleged infringement. (McCreary Report

(Doc. 212-2).) Defendant has offered Dr. Eric Bretschneider as

an expert to rebut Mr. McCreary’s infringement opinion.

(Bretschneider Am. Report (Doc. 201-3).)

Defendant moved to exclude certain testimony of Mr. Scally,

(Doc. 193), and submitted a brief in support of its motion.

(Mem. of Cree, Inc. in Supp. of Daubert Mot. Precluding Certain

Testimony of William B. Scally (“Def.’s Scally Br.”) (Doc.

194).) Plaintiff responded, (OptoLum, Inc.’s Opp’n to Cree,

Inc.’s Daubert Mot. to Exclude Certain Testimony of William B.

Scally (“Pl.’s Scally Resp.”) (Doc. 205)); and Defendant

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

replied, (Doc. 216). Defendant also moved to exclude certain

testimony of Mr. McCreary, (Doc. 197), and submitted a brief in

support of its motion. (Mem. of Cree, Inc. in Supp. of its

Daubert Mot. to Exclude Certain Testimony of Charles McCreary

(“Def.’s McCreary Br.”) (Doc. 198).) Plaintiff responded,

(OptoLum, Inc.’s Opp’n to Cree, Inc.’s Mot. to Exclude Certain

Testimony of Charles McCreary (“Pl.’s McCreary Resp.”) (Doc.

209)), and Defendant replied, (Reply Mem. of Cree Inc. in Supp.

of its Daubert Mot. to Exclude Certain Testimony of Charles

McCreary (“Def.’s Scally Reply”) (Doc. 217)).

Plaintiff moved for leave to file a surreply, (Pl.’s Mot.

and Mem. for Leave to File a Surreply in Opp’n to Cree Inc.’s

Daubert Mot. to Exclude Certain Testimony of Charles McCreary

(Doc. 219)). Defendant responded to Plaintiff’s motion for leave

to file a surreply, (Doc. 222), and Plaintiff replied, (Doc.

225).

Plaintiff moved to exclude certain testimony of

Dr. Bretschneider, (Doc. 199), and submitted a brief in support

of its motion, (OptoLum, Inc.’s Mem. in Supp. of its Mot. to

Exclude Certain Testimony of Dr. Eric Bretschneider (“Pl.’s

Bretschneider Br.”) (Doc. 200)). Defendant responded, (Def.

Cree, Inc.’s Mem. in Opp’n to Pl. OptoLum, Inc.’s Mot. to

Exclude Certain Testimony of Dr. Eric Bretschneider (“Def.’s

Bretschneider Resp.”) (Doc. 203)); and Plaintiff replied, (Doc.

215).

On October 8, 2021, this court held an evidentiary hearing

on the parties’ motions to exclude certain expert testimony.

(Minute Entry 10/08/2021.)

II. ANALYSIS

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify

in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles

and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

Fed. R. Evid. 702. In Daubert v. Merrell Dow. Pharms., Inc., 509

U.S. 579 (1993), the Supreme Court clarified “that it is the

duty of the trial court to perform the gatekeeping function with

respect to expert testimony: ‘the trial judge must ensure that

any and all scientific testimony or evidence admitted is not

only relevant, but reliable.’” United States v. Prince-Oyibo,

320 F.3d 494, 498 (4th Cir. 2003) (quoting Daubert, 509 U.S. at

589). The Supreme Court in Daubert provided a list of

non-exclusive factors a court should consider in assessing the

reliability of expert testimony: (1) whether the particular

scientific theory “can be (and has been) tested”; (2) whether

the theory “has been subjected to peer review and publication”;

(3) “the known or potential rate of error”; (4) the existence

and maintenance of standards controlling the technique’s

operation; and (5) whether the technique has achieved general

acceptance in the relevant scientific or expert community.

Daubert, 509 U.S. at 591.

A. Motion to Exclude Certain Testimony of Mr. Scally

Defendant moves to exclude certain testimony of Mr. Scally

for three reasons: (1) Mr. Scally included a 5% “incremental

value” to Defendant’s brand in addition to the royalty rate for

infringement; (2) Mr. Scally did not apportion his damages

calculation; and (3) his opinion is based on unreliable facts.

(Def.’s Scally Br. (Doc. 194) at 6-7.)

Mr. Scally opines “that a reasonable royalty equal to at

least 10% of the net sales revenue generated through the sale of

the accused Cree LED light bulbs represents the proper form of

damages in this matter.” (Scally Report (Doc. 299) at 6.)

Mr. Scally further states in his report that “Cree expected that

the benefit from the technology would extend beyond the Accused

Products by enabling Cree to build a company-wide brand and thus

boost overall company sales. This incremental value is

considered in my calculation of the 10% royalty rate[.]” (Id.)

He thus concludes that “Cree would have been willing to pay an

incremental rate of at least 5% in order to leverage the Accused

Products to build the broader Cree brand, suggesting a final

negotiated royalty rate of at least 10%.” (Id. at 67.)

In a patent infringement suit, damages shall “in no event

[be] less than a reasonable royalty for the use made of the

invention by the infringer, together with interest and costs as

fixed by the court.” 35 U.S.C. § 284. The Federal Circuit has

explained that, in “litigation, a reasonable royalty is often

determined on the basis of a hypothetical negotiation, occurring

between the parties at the time that infringement began.” Uniloc

USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1312 (Fed. Cir.

2011) (citing Wang Labs. Inc. v. Toshiba Corp., 993 F.2d 858,

869–70 (Fed. Cir. 1993)). “A comprehensive (but unprioritized

and often overlapping) list of relevant factors for a reasonable

royalty calculation appears in Georgia-Pacific Corp. v. United

States Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970).”

ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 868-69 (Fed.

Cir. 2010) (internal citation omitted).

The Federal Circuit’s embrace of the Georgia-Pacific

factors reflects that an expert must rely on evidence “tied to

the relevant facts and circumstances of the particular case at

issue and the hypothetical negotiations that would have taken

place in light of those facts and circumstances at the relevant

time.” Uniloc USA, 632 F.3d at 1318.

1. Incremental Value

Defendant argues that “[t]his add-on brand development

Incremental Rate is unreliable” because it “accounts for value

other than the value that the patents-in-suit allegedly

contributed to the Accused Products.” (Def.’s Scally Br. (Doc.

194) at 19-20.) Plaintiff argues that it was reliable for

Mr. Scally to consider the value of the use of the technology to

Defendant beyond the technology itself. (Pl.’s Scally Resp.

(Doc. 205) at 7.) Plaintiff cites Georgia-Pacific Factor 11 –

the extent to which the infringer has made use of the invention;

and any evidence probative of the value of that use – in support

of that argument. (Id.)

Georgia-Pacific Factor 11 “informs the court and jury about

how the parties would have valued the patented feature during

the hypothetical negotiation.” Lucent Techs., Inc. v. Gateway,

Inc., 580 F.3d 1301, 1333 (Fed. Cir. 2009). “In doing so, Factor

11 relies on evidence about how much the patented invention has

been used. Implicit in this Factor is the premise than an

invention used frequently is generally more valuable than a

comparable invention used infrequently.” Id.

Mr. Scally’s report relies on a number of assumptions in

defining the hypothetical royalty negotiation. Notably to the

analysis contained herein, Mr. Scally recognized that success by

Cree in the sale of LED lightbulbs required hitting a specific

price point, which he identified as $10.00. (Doc. 299 at 32.)

Furthermore, Mr. Scally also assumed that the hypothetical

license was non-exclusive. (Id. at 34.) Finally, Mr. Scally

acknowledged that the look of the Cree bulbs, similar to

traditional incandescent bulbs, was critical to the success of

the product. (Id. at 50.)

Against the facts assumed by Mr. Scally as a basis for the

hypothetical negotiation as to a royalty payment, Mr. Scally

opined, inter alia, that the sale of LED bulbs by Defendant

resulted in an increase in “brand value” resulting from the sale

of the accused products. (Id. at 57.) In turn, the sale of the

infringing LED bulbs placed “significant upward pressure” on the

hypothetical negotiated royalty rate. (Id. at 61-62.) As a

result, Mr. Scally concluded that there was an incremental value

of the patents to Defendant in building its brand, and that

Defendant would hypothetically pay in royalty 5% for that

factor, (id. at 62), resulting in a total royalty amount of 10%.

Defendant challenges this 5% brand value calculation.

During Mr. Scally’s deposition, he admitted that the 5%

incremental rate accounts for value other than the value the

patents contributed to the accused products. Mr. Scally stated

that “brand” was something he considered in assessing the

incremental value, and that he viewed “brand” as “something

other than being able to make, use, and sell the accused

lightbulbs.” (Scally Dep. (Doc. 196-2) at 35-36.)

Q. Okay. So the value of the brand was

something other than being able to make, use and sell

the accused lightbulbs? Correct?

MR. MISIC: Objection.

A. Yes. It was something else.

BY MR. HARPER:

Q. Okay. And that something else was what you

have labeled brand? Right?

MR. MISIC: Objection.

A. Yes.

BY MR. HARPER:

Q. And that 5 percent was a straight addition

to the existing – to the 5 percent that you determined

for the rest of the factors of your analysis? Correct?

MR. MISIC: Objection.

A. Yes. It is incremental.

(Id. at 36.)

Plaintiff’s argument that under Georgia-Pacific Factor 11,

Mr. Scally can consider the value of the Patents on Cree’s

overall brand and its effect on Cree’s products other than the

accused products appears contrary to the Federal Circuit’s

interpretation of Georgia-Pacific Factor 11. In Lucent

Technologies, the Federal Circuit interpreted Factor 11 as

considering how often the accused products were used by the

infringer, not – as Plaintiff contends – how the patented

technology affected the use of an infringer’s other products or

overall brand. See Lucent Techs., 580 F.3d at 1333. Because a

plaintiff is entitled to damages only related to infringing

activities, it is inappropriate for Mr. Scally to include in his

damages calculation any value the Patents conferred on Cree’s

overall brand or its products other than the accused products.

See Power Integrations, Inc. v. Fairchild Semiconductor Int’l,

Inc., 904 F.3d 965, 977 (Fed. Cir. 2018) (“A patentee is only

entitled to a reasonable royalty attributable to the infringing

features.”); see also Enplas Display Device Corp. v. Seoul

Semiconductor Co., 909 F.3d 398, 411-12 (Fed. Cir. 2018)

(vacating a jury’s damages award where the only evidence

supporting the damages award was testimony from a damages expert

that included non-infringing device sales in the royalty

calculation).

While there may be circumstances under which a “brand value

increase” might be a factor in assessing a reasonable royalty,

this court finds that Mr. Scally’s testimony does not meet the

threshold requirements of Daubert and Federal Rule of Evidence

104 with respect to an opinion that brand value increase

supports an upward royalty rate of 5%.

Federal Rule of Evidence 702 requires expert testimony be

based on “sufficient facts or data,” “the product of reliable

. . . methods,” and that the expert reliably apply “the

principles and methods to the facts of the case.” Fed. R. Evid.

702(b)-(d). Additionally, Federal Rule of Evidence 104 requires

a trial court to determine whether these elements are met by a

preponderance of the evidence before admitting expert testimony.

Fed. R. Evid. 104(a). This court finds the brand value damage

calculation is not based on sufficient facts, and there is

insufficient data to support the opinion.

Mr. Scally presents information from both Cree and third

parties that the sale of the infringing LED bulbs helped Cree

build its “brand.” While there may be certain logical force to

Scally’s analysis in assessing damages – that increase in brand

value recognized by Cree through the sale of the infringing

bulbs should be captured as damages – this court finds

Mr. Scally’s conclusion in determining a reasonable royalty rate

not supported by the assumptions and facts.

First, Mr. Scally’s opinion is about a reasonable royalty

arising from a hypothetical negotiation entered into prior to

infringement. (Doc. 299 at 28.) However, the brand value

calculation is based on facts and assumptions that occurred in a

market not affected by, or that even addressed, a hypothetical

non-exclusive licensing agreement. Mr. Scally’s data is based

upon hindsight, that is, Defendant’s sales of infringing

products and brand development in the absence of a non-exclusive

license from OptoLum. Mr. Scally never explains how or why a

hypothetical negotiation prior to infringement would take into

consideration an increase in brand value from the use of a non-

exclusive license from OptoLum or the relationship between a

non-exclusive license and brand development in establishing the

parameters of a hypothetical negotiation. Mr. Scally

acknowledges Cree’s success, if any, with respect to sales, were

the result of a specific price point and the look of the bulb

Cree developed. Resultingly, the principle applied – the

calculation of a hypothetical reasonable royalty agreed-upon

prior to infringement – is based upon post-infringement success

on facts derived from the absence of a hypothetical licensing

agreement and the payment of a royalty. While the “brand value”

increase might otherwise be compelling as a measure of wrongful

profits, Mr. Scally’s damage calculation is, as it must be,

based on a hypothetical reasonable royalty.

Second, Mr. Scally offers no data or support to suggest any

brand success could have been derived from product sales arising

from a hypothetical non-exclusive license in the same way and

manner that those sales occurred without a license agreement.

That in turn makes it speculative that any brand success Cree

may have realized from sales without a non-exclusive license

agreement are probative of what facts or factors Cree or OptoLum

might have hypothetically considered in negotiating a royalty

with a component of brand value using a non-exclusive licensing

agreement. It appears to this court that Mr. Scally’s opinion -

that brand value increase would have put upward pressure on the

likely negotiated royalty - is entirely speculative. Mr. Scally

offers no assumptions or facts to explain how a hypothetical,

non-exclusive license negotiation would have been impacted by

potential brand value increases or, more significantly, how

those facts in turn would have impacted the calculation of a

hypothetical reasonable royalty. Instead, Mr. Scally seems to

assume, without explanation or support, that any brand value

increases realized in the absence of a licensing agreement would

have been recognized in a similar fashion during the

hypothetical negotiation prior to infringement. This

determination should not be based on “a hindsight evaluation of

what actually happened, but on the basis of what the parties to

the hypothetical license negotiations would have considered at

the time of negotiations.” Hanson v. Alpine Valley Ski Area,

Inc., 718 F.2d 1075, 1081 (Fed. Cir. 1983).

Third, even assuming that Plaintiff’s interpretation of

Georgia-Pacific Factor 11 is correct under certain

circumstances, Mr. Scally fails to explain how or why the

trademark contract he used for guidance – the G.E./Safety Quick

contract and the Hoover/Capstone Industries contract – apply to

the hypothetical royalty negotiation between OptoLum and Cree.

No data, facts, or analysis are provided to explain whether the

value of the trademark licenses is derived from total sales,

non-exclusive licenses, unique products, ownership of

technology, or anything else. The analysis appears to rely

exclusively on “brand name,” (Scally Report (Doc. 299) at 62),

without any analysis of the parameters of the hypothetical

negotiation, including the effect, if any, of the technology on

subject to a non-exclusive license instead of ownership of the

technology.2 (Id.)

Mr. Scally’s royalty calculation includes a 5% “increase in

brand value” that is not based on relevant facts or data and has

not been shown to reliably apply the principles and methods to

the facts of this case. A proffer of expert testimony must be

reliable and may not be based on belief or speculation. Daubert,

509 U.S. at 592-93. Mr. Scally’s opinion that the hypothetical

calculation would have included a 5% increase for brand value

should be excluded.

2. Entire Market Value Rule

This court further finds that Mr. Scally’s damages opinion

should not be excluded as a matter of law for failure to

apportion.

“The entire market value rule is a narrow exception to

[the] general rule” that “royalties be based not on the entire

product, but instead on the ‘smallest salable patent-producing

unit.’” LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d

51, 67 (Fed. Cir. 2012) (quoting Garretson v. Clark, 111 U.S.

2 Mr. Scally, in discussing brand development, quotes Cree

extensively regarding the importance of Cree’s technology. (See,

e.g., Scally Report (Doc. 299) at 24 (“Cree itself called the

introduction of the Filament Tower™ ‘game-changing’[.]”); and

id. at 59 (“[L]eading with innovation and building the Cree

brand were the first and second priorities.”).)

120, 121 (1884)). In other words, “[t]he entire market value

rule allows for the recovery of damages based on the value of an

entire apparatus containing several features, when the feature

patented constitutes the basis for customer demand.” Lucent

Techs., 580 F.3d at 1336 (quoting TWM Mfg. Co. v. Dura

Corp., 789 F.2d 895, 901 (Fed. Cir. 1986)). The entire market

value rule is derived from Supreme Court precedent requiring

that “[t]he patentee . . . must in every case give evidence

tending to separate or apportion the defendant’s profits and the

patentee’s damages between the patented feature and the

unpatented features, and such evidence must be reliable and

tangible, and not conjectural or speculative.” Garretson, 111

U.S. at 121. The Supreme Court explained that “the entire value

of the whole machine, as a marketable article, [must be]

properly and legally attributable to the patented feature.” Id.

“Under the entire market value rule, if a party can prove that

the patented invention drives demand for the accused end

product, it can rely on the end product’s entire market value as

the royalty base.” Commonwealth Sci. & Indus. Rsch. Organisation

v. Cisco Sys., Inc., 809 F.3d 1295, 1302 (Fed. Cir. 2015)

(emphasis added) (quoting LaserDynamics, 694 F.3d at 67).

The entire market value rule is “a demanding alternative to

[the] general rule of apportionment.” Power Integrations, 904

F.3d at 977 (citation omitted).

If the product has other valuable features that

also contribute to driving consumer demand — patented

or unpatented — then the damages for patent

infringement must be apportioned to reflect only the

value of the patented feature. This is so whenever the

claimed feature does not define the entirety of the

commercial product. In some circumstances, for

example, where the other features are simply generic

and/or conventional and hence of little distinguishing

character, such as the color of a particular product,

it may be appropriate to use the entire value of the

product because the patented feature accounts for

almost all of the value of the product as a whole.

Id. at 978 (citation omitted).

In Power Integrations, the royalty rate was premised on the

patent’s frequency reduction feature as driving consumer demand

for the infringer’s controller chips. Id. The plaintiff

presented evidence that the frequency reduction feature was

“essential to many customers,” and “that some customers asked

for the [patented] feature, that products with the [patented]

feature outsold other products, and that technical marketing

materials promoted the [patented] feature.” Id. Further, both

parties agreed that the accused products contained other

valuable features. Id.

The Federal Circuit held that it is not enough to

affirmatively prove that the patented feature is essential, or

that the product would not be commercially viable without the

patented feature, or that customers would not purchase the

product without the patented feature. Id. at 978-79. Instead,

the patentee must prove that the other features do not cause

consumers to purchase the accused product. Id. at 979-80. The

patented feature must be the “sole driver of customer demand.”

Id. at 979. The court in Power Integrations then explained how a

patentee proves the patented feature drives demand:

Where the accused infringer presents evidence that its

accused product has other valuable features beyond the

patented feature, the patent holder must establish

that these features do not cause consumers to purchase

the product. A patentee may do this by showing that

the patented feature “alone motivates customers to

purchase [the infringing product]” in the first place.

Id. (quoting LaserDynamics, 694 F.3d at 69). Because the patent

owner “did not meet its burden to show that the patented feature

was the sole driver of consumer demand,” the Federal Circuit

vacated the damage award. Id. at 979-80; see also Lucent Techs.,

580 F.3d at 1337-38 (reversing the district court’s decision

where the jury applied the entire market value rule because

“Lucent did not carry its evidentiary burden of proving that

anyone purchased Outlook because of the patented method” where

“Lucent’s damages expert conceded that there was no ‘evidence

that anybody anywhere at any time ever bought Outlook . . .

because it had a date picker’”).

Plaintiff argues the patented technology enables the

features of the Cree products that drove demand, and that

therefore the entire market value rule is appropriate. (Pl.’s

Scally Resp. (Doc. 205) at 15.) Defendant has presented evidence

that the value of the technology should not be subject to the

entire market value rule because features such as omni-

directional light, similar form to incandescent bulbs, and price

point were the features which drove demand. (Scally Report (Doc.

299) at 30.) On the other hand, Plaintiff has forecast evidence

that the Filament Tower™ is “game changing” and allowed “LED

bulbs to be introduced at a retail price point that gave

consumers a reason to switch to LED lighting.” (Id. at 24.)

Mr. Scally’s report identifies a statement from Cree’s corporate

marketing department that describes “the Filament Tower™

technology as an ‘elegant solution’ that not only . . . but also

created the traditional ‘omni-directional’ light of incandescent

A-type bulbs.” (Id. at 45.) Mr. Scally’s report also notes that

Cree has said “Cree LED Filament Tower™ Technology represents a

breakthrough in LED bulb design. It provides an optically

centered and balanced light source within a real glass bulb that

is nearly indistinguishable from a traditional incandescent

filament.” (Id. at 52.) Cree’s own statements, as cited by

Mr. Scally, support Plaintiff’s contention that the Filament

Tower™ enabled the customer demand. This court is therefore

unable to find, as a matter of law, that Plaintiff will be

unable to show that the infringing technology is subject to the

entire market value rule.

3. Facts Underlying Mr. Scally’s Opinion

This court further finds that Mr. Scally’s damages opinion

is based on data sufficiently tied to the facts of this case.

Defendant argues that Mr. Scally should not be permitted to

testify because his opinion is based on information not tied to

the facts of this case. (Def.’s Scally Br. (Doc. 194) at 31-43.)

Specifically, Defendant contests Mr. Scally’s reliance on (1) a

; (2) Degnan & Horton Survey; (3) Licensing

Economics Review article; (4) RoyaltySource licenses; (5) prior

Cree licenses; and (6) a sensitivity analysis. (Id.)

First, regarding Mr. Scally’s consideration of the

, Defendant argues it is unacceptable to

use a party’s . (Id. at

31-32.) However, Defendant misconstrues Mr. Scally’s use of the

. Unlike Defendant’s assertion, Mr. Scally

did not use the but

rather as consideration of Georgia-Pacific Factor 1 – the

royalties received by the patentee for the licensing of the

patents-in-suit, proving or tending to prove an established

royalty. (Scally Report (Doc. 299) at 34.) Here, Mr. Scally

noted that the asserted patents have never been licensed but

that

(Id.) Mr. Scally goes on to note

that because OptoLum has never licensed the asserted patents and

because

(Id.) Essentially, Mr. Scally noted the

prior and then explained why

he valued as neutral. This court finds Mr. Scally

provided sufficient reasoning for his reliance on

and his analysis was sufficiently tied to the

facts of this case. Therefore, this court finds Mr. Scally’s

opinion should not be excluded because he relied in part on the

Second, Defendant contests Mr. Scally’s reliance on the

Degnan & Horton survey because Mr. Scally does not know the

technologies, licenses, and parties on which the survey is

based. (Def.’s Scally Br. (Doc. 194) at 32-35.) Plaintiff

responds that in considering Georgia-Pacific Factor 12 – the

portion of the profit or the selling price that may be customary

in the particular business or in comparable businesses to allow

for the use of the invention or analogous inventions – Mr.

Scally reasonably relied on publicly available information in

marketing surveys. (Pl.’s Scally Resp. (Doc. 205) at 21.)

“[T]o establish a reasonable royalty, the ‘licenses relied

on by the patentee in proving damages [must be] sufficiently

comparable to the hypothetical license at issue in suit.’”

Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1330 (Fed.

Cir. 2014) (quoting Lucent Techs., 580 F.3d at 1325). Although

“alleging a loose or vague comparability between different

technologies or licenses does not suffice,” LaserDynamics, 694

F.3d at 79, the Federal Circuit “ha[s] never required identity

of circumstances[.]” Virnetx, 767 F.3d at 1330. Rather, the

Federal Circuit has “long acknowledged that ‘any reasonable

royalty analysis necessarily involves an element of

approximation and uncertainty.’” Id. (quoting Lucent Techs., 580

F.3d at 1325).

For example, in Virnetx, the Federal Circuit held the

district court did not abuse its discretion in allowing the

damages expert to rely on licenses that were either related to

the actual patents-in-suit or were drawn to related technology.

Id. The Federal Circuit noted that the differences between the

licenses and the hypothetical negotiation between the parties

were presented to the jury, who ultimately determined the

relevancy of those licenses. Id.

In Mr. Scally’s report, he relies on the Degnan & Horton

Survey for evidence of licensing rates depending on whether the

technology is “revolutionary,” a “major improvement,” or a

“minor improvement.” (Scally Report (Doc. 299) at 64.) Based on

Cree’s own statements that the technology was “game-changing,”

Mr. Scally considered the technology would at least be

considered a “major improvement.” (Id.) This court finds the

Degnan & Horton Survey is sufficiently tied to the facts of this

case. Mr. Scally used the survey as evidence of the range of a

reasonable royalty for patented technology that is a major

improvement. Mr. Scally relied on Cree’s own statements to

reasonably determine the technology was at least a major

improvement over prior LED lightbulbs. Therefore, this court

finds Mr. Scally’s opinion should not be excluded because he

relied in part on the Degnan & Horton survey.

Third, Defendant argues the Licensing Economic Review

article is not sufficiently tied to the facts of this case.

(Def.’s Scally Br. (Doc. 194) at 35-37.) As part of Mr. Scally’s

consideration of Georgia-Pacific Factor 12, Mr. Scally relied on

a Licensing Economics Review article on royalty rates from

twenty-eight years’ worth of licensing agreements, broken down

by industry. (Scally Report (Doc. 299) at 63-64.) Mr. Scally

noted the median royalty rate for the Electrical and Electronics

industry was 4.3%, and the median royalty rate for the Consumer

Goods, Retail, and Leisure industry was 5.0%. (Id.)

This court finds the Licensing Economics Review article is

sufficiently tied to the facts of this case. Although consumer

goods and electrical and electronics may be broad categories

that encompass other technology than LEDs, this is not a case

where the subject matter of the licenses is not ascertainable

from the evidence. See Lucent Techs., 580 F.3d at 1327-28. That

the licenses relied on by Mr. Scally concern a broader category

of patentable technology is not sufficient, as a matter of law,

to warrant exclusion. See ActiveVideo Networks, Inc. v. Verizon

Commc’ns, Inc., 694 F.3d 1312, 1333 (Fed. Cir. 2012) (affirming

the district court’s allowance of expert testimony where the

expert relied on two licensing agreements, one of which post-

dated the hypothetical negotiation, did not involve the patents-

in-suit, and did not cover the technologies in the case, and the

other involved both patents and software services). “The ‘degree

of comparability’ of the license agreement [is] ‘[a] factual

issue[] best addressed by cross examination and not by

exclusion.’” Virnetx, 767 F.3d at 1331 (quoting ActiveVideo

Networks, 694 F.3d at 1333). Therefore, this court finds

Mr. Scally’s opinion should not be excluded because he relied in

part on the Licensing Economics Review article.

Fourth, Defendant argues the RoyaltySource licenses are not

sufficiently tied to the facts of this case because those

licenses were trademark licenses. (Def.’s Scally Br. (Doc. 194)

at 37-39.) Specifically, Defendant argues the RoyaltySource

licenses are not comparable subject matter because they

concerned OLEDs. (Id. at 37-38.) Additionally, Defendant argues

the RoyaltySource licenses are not economically comparable

because they “transferred world-wide patent rights and know-how”

which the hypothetical negotiation would not have involved, and

yet Mr. Scally did not adjust for that difference. (Id. at 38.)

This court finds that as a matter of law, Mr. Scally’s

opinion is not inadmissible because he relies in part on the

RoyaltySource licenses. Mr. Scally explains in his report how he

determined the degree of comparability between the RoyaltySource

licenses and the hypothetical negotiation. (See Scally Report

(Doc. 299) at 63.) He also concedes that:

the terms and technology of the license agreements

identified . . . via RoyaltySource do not precisely

align with the patented technology asserted in this

matter nor the terms of the hypothetical negotiation

. . . [but] they provide a representative range . . .

of customary royalty rates actually paid by companies

licensing technology related to LED lighting.

(Id. at 64.) Because Mr. Scally has sufficiently explained

the comparability between the RoyaltySource licenses and

the hypothetical negotiation, Mr. Scally’s opinion should

not be excluded as a matter of law. The degree of

comparability of the RoyaltySource licenses is a question

for the jury. Virnetx, 767 F.3d at 1331.

Fifth, Defendant contests Mr. Scally’s reliance on prior

Cree licenses because those licenses arose out of litigation and

were cross-licenses that involved combinations of lump sum and

running royalty payments. (Def.’s Scally Br. (Doc. 194) at 39-

42.)

The Federal Circuit has held that a damages expert’s opinion

should not be excluded as a matter of law because the licenses

relied on by the expert involve a lump sum rather than a running

royalty. See Finjan, Inc. v. Secure Computing Corp., 626 F.3d

1197, 1212 (Fed. Cir. 2010) (affirming the damages award based

on licenses involving a lump sum rather than a running royalty

because “[those] differences permitted the jury to properly

discount the . . . license”).

Here, Mr. Scally explained the differences between the Cree

licenses and the hypothetical negotiation in his report. (See

Scally Report (Doc. 299) at 63.) Mr. Scally also notes that the

agreements were negotiated in the context of ongoing litigation

but nevertheless “provide a representative range of customary

royalty rates actually paid by companies licensing technology

related to LED lighting.” (Id.) Whether that opinion is credible

is for the jury to decide. Virnetx, 767 F.3d at 1331. Therefore,

this court finds that Mr. Scally’s opinion should not be

excluded because he relies in part on the Cree licenses.

Finally, Defendant contests Mr. Scally’s sensitivity

analysis and argues 20% is unsupported by the facts of this

case. (Def.’s Scally Br. (Doc. 194) at 42.) Plaintiff responds

that Mr. Scally uses 20% as a “sanity check” to show that his

opinion of a reasonable royalty is reasonable. (Pl.’s Scally

Resp. (Doc. 205) at 26.) Mr. Scally opines that “if Cree paid a

20% royalty rate on the Accused Sales from FY13 to FY18, the

median gross profit margin of Cree remains constant at 30%.”

(Scally Report (Doc. 299) at 67.)

This court finds that, while the logic of Mr. Scally’s

sensitivity analysis may be appealing, a reasonable royalty of

20% is not justified by the evidence relied upon by Mr. Scally.

A sensitivity analysis showing that Cree’s profit margin remains

constant despite paying a royalty on the Accused Sales is

plainly relevant to a determination of a reasonable royalty

because it tends to make it more probable that Mr. Scally’s

proffered royalty rate is reasonable. See Fed. R. Evid. 401.

However, this court finds that because 20% is not supported by

the evidence, the jury would be misled by an implicit suggestion

that 20% is reasonable, when in fact that number is unsupported

by the evidence. See Fed. R. Evid. 403. Accordingly, this court

finds that Mr. Scally may testify about performing a sensitivity

analysis, and that his sensitivity analysis showed that a

royalty of 5% (his admissible royalty rate) is reasonable, but

he may not testify about a 20% royalty.

B. Motion to Exclude Certain Testimony of Mr. McCreary

Plaintiff seeks to have Mr. McCreary testify as an expert

at trial and give an opinion on infringement. Mr. McCreary

opines that certain Cree products infringed claims 2-4 and 6-9

of the ‘303 patent and 1-3, 5-8, 14 and 16 of the ‘028 patent.

(See McCreary Report – Def.’s Excerpts (Doc. 198-5) at 2-5.)

Defendant moves to exclude certain testimony of Mr. McCreary

because (1) Mr. McCreary is not qualified; and (2)

Mr. McCreary’s opinion lacks a reliable methodology. (Def.’s

McCreary Br. (Doc. 198) at 5-6.) Plaintiff responds that

Mr. McCreary is qualified to testify as an expert and used a

reliable methodology in forming his opinion. (Pl.’s McCreary

Resp. (Doc. 209) at 2-3.)

1. Mr. McCreary’s Qualifications

Defendant argues that Mr. McCreary is not qualified as an

expert to offer an opinion on infringement. (Def.’s McCreary Br.

(Doc. 198) at 35-41.) Specifically, Defendant takes issue with

Mr. McCreary’s lack of experience designing or studying LED

lightbulbs. (Id. at 38-39.) Although Mr. McCreary’s deposition

testimony reflects that he does not have experience with LED

lightbulbs, he does have experience in the general area of

thermal analysis. Further, Mr. McCreary’s report reflects he has

experience in thermal modeling, thermal analysis, and design and

manufacturing of numerous LED lighting products. (McCreary

Report – Pl.’s Excerpts (Doc. 212-2) at 9-11.)

Defendant argues that Mr. McCreary’s “testimony cannot be

elicited under Fed. R. Evid. 702 absent some experience in the

specific design of LED light bulbs.” (Def.’s McCreary Reply

(Doc. 217) at 21.) That is not so. In Belk, Inc. v. Meyer Corp.,

U.S., the Fourth Circuit upheld the district court’s refusal to

exclude an expert as unqualified where the expert had general

experience in survey design but had no experience designing

trade dress or trademark surveys. 679 F.3d 146, 162 (4th Cir.

2012). The Fourth Circuit noted that the party seeking exclusion

of the expert “provide[d] no support for its argument that

consumer survey research in trade dress litigation is sui

generis such that an expert’s lack of experience in designing

these specific surveys necessarily disqualifies him from giving

an expert opinion.” Id.

Here, Defendant has not shown that LED lightbulbs are so

unique such that Mr. McCreary must have firsthand experience

with them to opine on infringement. Mr. McCreary’s curriculum

vitae indicates he has experience in the design and manufacture

of LED lighting products and in thermal design and analysis.

This shows that Mr. McCreary has the requisite skill, training,

experience, knowledge, or education in the general area of

thermal analysis/LED lighting. See Fed. R. Evid. 702; Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 147 (1999).

Further, Plaintiff argued at the October 8 evidentiary

hearing that the relevant question is not whether the LEDs are

“configured to” (or specifically designed to) conduct heat away

from solid state light sources. Rather, Plaintiff asserts the

relevant question is whether the elongate thermally conductive

member is specifically designed to conduct heat away from said

solid state light sources to fluid contained by said elongate

thermally conductive member. This court agrees. The “configured

to” claim limitation is related to the elongate thermally

conductive member, not the LEDs. See Patent ‘028 (Doc. 32-2)

col. 4, lines 43-53. This court has considered Mr. McCreary’s

qualifications as they relate to the offered opinions and finds

no reason to exclude the challenged expert opinion based on the

standards articulated in Daubert and Fed. R. Evid. 702.

Mr. McCreary’s experience (or lack thereof) in the design of LED

lightbulbs can be appropriately handled through “[v]igorous

cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof,” Summit 6, LLC v.

Samsung Elecs. Co., 802 F.3d 1283, 1296 (Fed. Cir. 2015), and

left to the factfinder to determine credibility.

2. Mr. McCreary’s Methodology

Defendant also argues that Mr. McCreary’s testimony should

be excluded because Mr. McCreary fails to identify any

methodology for his selection of the A19 Gen 1 and A19 Gen 2

computer models as representative of 47 Single Ring Accused

Products. (Def.’s McCreary Br. (Doc. 198) at 24-26.) Similarly,

Defendant argues Mr. McCreary fails to identify any methodology

for his selection of the A21 Gen 1 and Par38 computer models as

representative for the remaining 26 accused products. (Id. at

31-32.) Plaintiff responds that Mr. McCreary’s opinion “is based

upon a comprehensive and detailed methodology.” (Pl.’s McCreary

Resp. (Doc. 209) at 6.)

In forming his opinion, Mr. McCreary “review[ed] the ‘303

and ‘028 patents and their file histories, . . . examined

various samples of the Cree LED Bulbs as well as Cree produced

SOLIDWORKS® assembly files, technical documentation,

specifications, and literature concerning the Cree LED Bulbs

. . . .” (McCreary Report – Def.’s Excerpts (Doc. 198-5) at 6.)

Defendant produced six SOLIDWORKS files that were supposed to be

representative of at least some of the accused products.

(McCreary Report – Pl.’s Excerpts (Doc. 212-2) at 13.)

Mr. McCreary and Plaintiff’s counsel identified several

deficiencies in this production. (Id. at 14-16.) Mr. McCreary

then created SOLIDWORKS assembly files based on the Cree-

produced SOLIDWORKS files and modified Cree’s files to fix the

deficiencies. (Id. at 16-17.) Defendant later informed Plaintiff

of the errors in its assembly files and provided corrected

SOLIDWORKS assembly files. (Id. at 17.) Mr. McCreary compared

the corrected files with his model “and found that the changes

mirrored the changes [he] had already made with the exception of

the shape of the LEDs that [he] had added to [his] own files

which was immaterial to the thermal simulation and its results.”

(Id.) He then performed thermal simulations in SOLIDWORKS, which

led him to conclude that the SOLIDWORKS models were

representative of the accused products, and therefore Cree’s

products infringed the Patents. (McCreary Report – Def.’s

Excerpts (Doc. 198-5) at 8-12.) This court finds that

Mr. McCreary has sufficiently explained his methodology for

comparing the accused products to the Patents and that exclusion

of Mr. McCreary’s infringement opinion is inappropriate.

This court finds that Mr. McCreary’s methodology was based

on reliable principles and was sufficiently tied to the facts of

this case. Mr. McCreary reviewed Cree’s own SOLIDWORKS assembly

files, in which he noticed several errors and fixed the

deficiencies based on his review of physical samples of Cree

bulbs. Based on his experience in the field of LED lighting, he

determined which accused products were represented by the

assembly files. He then used the SOLIDWORKS files to perform

thermal analysis and determined that the accused products

infringed the Patents. Mr. McCreary’s methodology was

structurally sound and tied to the facts of this case.

That Mr. McCreary’s methodology was not peer-reviewed or

published does not require exclusion. “Where an expert otherwise

reliably utilizes scientific methods to reach a conclusion, lack

of [peer review or publication] may go to the weight, not the

admissibility of the expert’s testimony.” Summit 6, 802 F.3d at

1298 (quoting Knight v. Kirby Inland Marine Inc., 482 F.3d 347,

354 (5th Cir. 2007)) (internal quotation marks omitted). “To the

extent [Mr. McCreary’s] credibility, data, or factual

assumptions have flaws, these flaws go to the weight of the

evidence, not to its admissibility.” Id. at 1299. Therefore,

this court will deny Defendant’s motion to exclude

Mr. McCreary’s testimony.3

C. Motion to Exclude Certain Testimony of

Dr. Bretschneider

Plaintiff seeks to exclude certain testimony of

Dr. Bretschneider for four reasons: (1) Dr. Bretschneider’s

testimony “asked the wrong question”; (2) Dr. Bretschneider’s

testing protocol was flawed; (3) the testing was executed in a

flawed way; and (4) key evidence is no longer available for

inspection. (Pl.’s Bretschneider Br. (Doc. 200) at 23, 25, 30,

35.)

Defendant seeks to have Dr. Bretschneider testify at trial

regarding non-infringement. (Id. at 2.) To support his opinion

that Cree did not infringe OptoLum’s patents, Dr. Bretschneider

designed an experiment to test his opinion. (Bretschneider Am.

Report (Doc. 201-3) ¶ 337.) Dr. Bretschneider’s experiment was

3 This court finds that Defendant’s reply did not raise new

arguments, and therefore Plaintiff’s motion for leave to file a

surreply, (Doc. 219), should be denied. In this district

“[s]urreplies are generally disfavored.” Olvera-Morales v. Int’l

Labor Mgmt. Corp., 246 F.R.D. 250, 254 (M.D.N.C. 2007).

“Generally, courts allow a party to file a surreply only when

fairness dictates based on new arguments raised in the previous

reply.” DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.

2010). This court finds Plaintiff has failed to demonstrate that

fairness “justif[ies] the additional filing.” Hunter v. Town of

Mocksville, 271 F. Supp. 3d 787, 791 n.2 (M.D.N.C. 2017).

“designed to prove that the Accused Bulbs do not comprise ‘an

elongate thermally conductive member configured to conduct heat

to fluid therein.’” (Pl.’s Bretschneider Br. (Doc. 200) at 23.)

He conducted “a series of thermal analyses to evaluate the

impact of any heat conducted to air contained within the heat

sink tower structures in different bulbs” by directly measuring

the temperature within the accused products. (Bretschneider Am.

Report (Doc. 201-3) ¶ 337.)

1. Relevance of Experiment to Claim Limitation

Plaintiff argues Dr. Bretschneider’s testimony should be

excluded because his experiment is not relevant to the claim

element it purports to address. (Pl.’s Bretschneider Br. (Doc.

200) at 23-25.) Defendant responds that the data from

Dr. Bretschneider’s experiment “addresses the infringement

allegation because, in the absence of at least a detectable

effect from airflow in the tower structure, a heat sink

structure has not been specifically designed to transfer heat to

the airflow.” (Def.’s Bretschneider Resp. (Doc. 203) at 25

(citing Bretschneider Am. Report (Doc. 201-3) ¶ 469).) The

relevant claim limitation for purposes of Dr. Bretschneider’s

opinion is the “configured to” limitation: “said elongate

thermally conductive member being configured to conduct heat

away from said light emitting diodes to fluid contained by said

elongate thermally conductive member.” Patent ‘303 (Doc. 32-1)

col. 4, lines 43-46; Patent ‘028 (Doc. 32-2) col. 4, lines 38-

31.

Dr. Bretschneider’s experiment sought to determine what

happens to the “conduction of heat to a fluid inside the

filament tower” of the accused products. (See Bretschneider Dep.

(Doc. 201-6) at 49:4-9.) This court finds that

Dr. Bretschneider’s experiment is sufficiently related to the

“configured to” claim element. The “configured to” claim element

concerns the elongate thermally conductive member being

specifically designed to conduct heat away from the LEDs. If the

accused products are also specifically designed to conduct heat

away from the LEDs, then the accused products would infringe the

Patents. Dr. Bretschneider’s opinion is that the accused

products do not meet the “configured to” claim limitation

because there were no noticeable differences in temperature

inside the filament towers, and therefore the accused products

do not infringe. (Bretschneider Am. Report (Doc. 201-3) ¶ 192.)

Dr. Bretschneider’s experiment also serves to rebut Plaintiff’s

expert’s opinion on infringement. (Id. ¶ 591.) Because

Dr. Bretschneider sought to determine whether the accused

products met the “configured to” claim element, his experiment

is relevant to the infringement claims in this case.

2. Dr. Bretschneider’s Methodology

Plaintiff also argues that Dr. Bretschneider’s testimony

should be excluded because his methodology was flawed. (Pl.’s

Bretschneider Br. (Doc. 200) at 25-30.) Defendant responds that

Dr. Bretschneider’s report reflects he used reliable methodology

based on industry standards, and his experiment was replicable

and controlled for error. (Def.’s Bretschneider Resp. (Doc. 203)

at 30; Bretschneider Am. Report (Doc. 201-3) ¶ 338.)

This court finds that Dr. Bretschneider used reliable

methodology. Based on Dr. Bretschneider’s experience designing,

manufacturing, testing, and developing LED lightbulbs as well as

his experience developing and monitoring testing procedures and

standards for LED lightbulbs, Dr. Bretschneider developed his

testing methodology and incorporated appropriate industry

protocols to ensure reliability and accuracy of the data.

(Bretschneider Am. Report (Doc. 201-3) ¶ 338.) Dr. Bretschneider

used “industry accredited test facilities, properly calibrated

of the testing equipment and measurement tools, industry

standard environmental conditions and industry standard

statistical data analysis.” (Id.) In short, Dr. Bretschneider’s

experience with LED lightbulbs and testing LED lightbulbs

informed his methodology.

Plaintiff points to the foam used to block air flow in the

filament tower as evidence of a flawed methodology. (Pl.’s

Bretschneider Br. (Doc. 200) at 25.) Plaintiff complains that it

is impossible to know the thermal properties of the foam used by

Dr. Bretschneider. (Id.) Dr. Bretschneider explains why he used

the foam in his report. (Bretschneider Am. Report (Doc. 201-3)

¶ 342.) “Open celled foam was chosen over closed cell foam to

minimize any pressure applied to the thermocouple inside the

filament tower. Pressure applied to the thermocouple could shift

its position relative to the interior surface and create

temperature artifacts that would have impacted the integrity of

the data.” (Id.) Plaintiff has not offered any reason why it was

inherently unreliable for Dr. Bretschneider to use that foam or

why Plaintiff is not able to test the foam itself to determine

its thermal properties. Plaintiff concedes the foam used by

Dr. Bretschneider is readily available for purchase at major

retailers. This court finds Plaintiff’s reasons for exclusion

based on Dr. Bretschneider’s methodology to be insufficient.

Defendant has met its burden to show that Dr. Bretschneider’s

methodology was reliable.

3. Dr. Bretschneider’s Application of Methodology

Plaintiff further argues that Dr. Bretschneider did not

reliably apply his methodology because his protocol was not in

writing and the technicians were unqualified. (Pl.’s

Bretschneider Br. (Doc. 200) at 30-31.) Defendant responds that

Dr. Bretschneider reliably applied the methodology set forth in

his expert report. (Def.’s Bretschneider Resp. (Doc. 203) at

34.)

Plaintiff points out that the testing procedures called

“foam in and foam out” testing, but the data reflects some of

the technicians first measured temperature with foam out and

then with foam in the filament tower. (Pl.’s Bretschneider Br.

(Doc. 200) at 34.) However, Plaintiff has not offered a reason

as to why this affects the reliability of Dr. Bretschneider’s

application of his methodology. For example, Plaintiff does not

argue that the temperature results would be different if

Dr. Bretschneider first measured the temperature with the foam

out rather than with the foam in. Plaintiff will have the

opportunity at trial to test the credibility of

Dr. Bretschneider’s conclusions, but that is not a matter for

this court to decide. See Gen. Elec. Co. v. Joiner, 522 U.S.

136, 154 (1997) (Stevens, J., concurring in part and dissenting

in part) (“Daubert quite clearly forbids trial judges to assess

the validity or strength of an expert’s scientific conclusions,

which is a matter for the jury.”). Regarding the supervision of

the experiment, Dr. Bretschneider testified at his deposition

that he used his experience and knowledge to train the

technicians running his experiment. (See Bretschneider Dep.

(Doc. 201-6) at 82:16-83:17.) He also spent several days

observing the actual testing. (Id. at 87:13-17.) This court

finds that Defendant has met its burden to show

Dr. Bretschneider reliably applied his methodology and Plaintiff

has failed to prove otherwise.

4. Unavailability of Inspection of Experiment

Finally, Plaintiff argues that Defendant should be

sanctioned for destruction of evidence. (Pl.’s Bretschneider Br.

(Doc. 200) at 35.) Defendant responds that all of

Dr. Bretschneider’s sample lightbulbs are preserved and will be

used at trial. (Def.’s Bretschneider Resp. (Doc. 203) at 37.)

Defendant gave Plaintiff the opportunity to inspect the

lightbulbs during discovery. (Id.) Plaintiff essentially

complains that it did not have the opportunity to inspect the

lightbulbs when the foam was inside the filament tower. (Pl.’s

Bretschneider Br. (Doc. 200) at 35.) However, Plaintiff cites no

rule that would have required Defendant to have made available

for inspection Dr. Bretschneider’s experiment at every stage of

the experiment. This court finds Plaintiff’s dissatisfaction

with the state of the sample lightbulbs insufficient to exclude

Dr. Bretschneider’s testimony.

In conclusion, this court is satisfied that

Dr. Bretschneider’s testimony comports with Federal Rule of

Evidence 702 and Daubert. Therefore, this court will deny

Plaintiff’s motion to exclude Dr. Bretschneider’s testimony.

III. CONCLUSION

For the reasons set forth above,

IT IS THEREFORE ORDERED that Defendant’s Daubert Motion

Precluding Certain Testimony of William B. Scally, (Doc. 193),

is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Daubert Motion to

Exclude Certain Testimony of Charles McCreary, (Doc. 197), is

DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Exclude

Certain Testimony of Dr. Eric Bretschneider, (Doc. 199), is

DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to

File a Surreply, (Doc. 219), is DENIED.

IT IS FURTHER ORDERED that this Memorandum Opinion and

Order is FILED UNDER SEAL and the parties shall file, within ten

(10) days of the filing of this Opinion, a joint report

identifying the information in the Opinion, if any, they contend

should be redacted, along with an explanation of the basis for

their proposed redactions and a draft of this Opinion with those

proposed redactions. Because information contained herein will

likely be considered confidential information by the parties,

this Opinion shall remain sealed until the parties have had an

opportunity to submit their requested redactions.

This the 24th day of November, 2021.

LA; fin

WUihinm Lb. Blu, □

United States District Ju

_ 4 2 _