Holding: If an expert’s application of a court’s claim construction does not contradict that construction, the issue goes to weight, not admissibility, and should be left to the jury. Methodological deficiencies in a survey similarly bear on weight, not admissibility.
Dr. Barry sued DePuy alleging that DePuy induced surgeons to infringe US Patents No. 7,670,358; 8,361,121; and 9,668,787. These patents cover surgical techniques for treating spinal issues by providing derotation tools that are mounted on pedicle screws to allow a surgeon to apply force to vertebrae to realign the spinal column. The asserted patents teach techniques for linking derotation tools to allow administration of force on multiple misaligned vertebrae at the same time.
The claims of the asserted patents require the tools used in the claimed derotation technique to have one or more “handle means.” Prior to trial, the district court construed “handle means” to refer to “a part that is designed especially to be grasped by the hand” and to further include “both a single handle and the linked handle array contemplated” in the ‘787 Patent. The district court recognized that this could theoretically include almost every element of DePuy’s accused products since nearly every part of those products could be grasped by hand.
During discovery, Dr. Barry introduced two expert reports. The first report by Dr. Yassir stated that DePuy’s products could be assembled and used in a manner to infringe the asserted patents. The second report, by Dr. Neal, included survey evidence that sought to determine how often surgeons used DePuy’s accused products in an infringing manner.
DePuy filed Daubert motions before trial challenging the admissibility of these reports alleging that Dr. Yassir contradicted the district court’s construction of the term “handle means” and that Dr. Neal’s report violated accepted survey principles. The district court dismissed the Daubert motions, finding that these issues raised by DePuy went more toward the weight of the experts’ testimony rather than the admissibility of the testimony.
At trial, Dr. Yassir testified that the handle means was “construed as a part that is designed especially to be grasped by the hand” and that everything was a handle means in a linked system, such as the system presented by the DePuy products since these features are linked together. Dr. Yassir also agreed that handle means could refer to parts that could not be assembled without grasping them by hand. Dr. Neal also testified at trial, describing the methodology used to conduct his survey.
After the testimony of Dr. Yassir and Dr. Neal, DePuy renewed its Daubert motions and moved for judgment as a matter of law. The district court granted this motion to dismiss and granted JMOL to DePuy finding no infringement. The district court concluded that Dr. Yassir’s testimony was inadmissible because it contradicted the court’s construction of “handle means.” The district court also found that Dr. Neal’s survey methodology and results did not meet the necessary standards of reliability because he did not define the survey universe, conduct a probability survey, represent geographic diversity, analyze age or gender of respondents, analyze rates of non-response bias, follow-up with respondents, or perform a pre-test.
On review, the Federal Circuit held that the district court erred in finding the testimony of Dr. Barry’s experts to be inadmissible. In particular, the Federal Circuit found that Dr. Yassir’s testimony did not contradict the district court’s claim construction. Instead, the issue was Dr. Yassir’s application of the claim construction, and this issue should have been left to the factfinder to determine whether this application should be rejected.
Dr. Yassir stated the correct claim construction during his testimony and testified that his opinions were pursuant to that construction. Instead, the district court took issue with Dr. Yassir’s statement that multiple parts or the whole of the DePuy instruments could qualify handle means since they were designed to be grasped by the hands. This is an application of the court’s construction and not a contradiction of the construction. The district court also pointed to Dr. Yassir’s statement that components of the DePuy instruments that had to be assembled by hand could also be handle means as evidence of a contradiction of the court’s claim construction. However, the claim construction never distinguished between assembly and post-assembly use, so there was no actual contradiction of the claim construction. The district court should not treat arguable inconsistencies revealed during cross-examination to be the basis for the exclusion of the entirety of an expert’s testimony.
As to Dr. Neal’s testimony, the district court did not provide evidence that Dr. Neal’s survey, methods, or opinions would be unhelpful to the trier of fact. A court should not exclude evidence merely because it perceives a flaw in the expert’s investigative process. In this case, the district court only cited to Dr. Neal’s own trial testimony that was mostly led by the court itself and not an expert in survey design. Dr. Neal testified as to the scientific merits of his survey methodology. Any flaws raised by DePuy should have been presented to the jury, which could then determine the weight to give to Dr. Neal’s testimony. A survey’s methodological deficiencies generally go to the evidentiary weight of the survey and not to its admissibility.
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