Case 1:04-cv-03711-JTC

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHEMFREE CORPORATION, Plaintiff

CIVIL CASE NO. 1:04-CV-3711-JTC

v. J. WALTER, INC., and J. WALTER COMPANY, LTD. Defendants. ORDER

This matter is currently before the Court on Defendants’ motion in limine to exclude portions of the Whiteman, McNally, and Marks Declarations [#501]. Federal Rule of Evidence 701 governs the admissibility of opinion testimony by lay witnesses. Fed. R. Evid. 701. Rule 701 provides that: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. Subsection (c) was added to Rule 701 in 2000 in order “to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd.,

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320 F.3d 1213, 1221 (11th Cir. 2003) (quoting Fed. R. Evid. 701 Advisory Committee’s Notes.) Under the current version of Rule 701, “a witness’ testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701 Advisory Committee’s Notes (citing generally Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190 (3d Cir. 1995)). Lay opinion testimony is admissible when it is based “upon the particularized knowledge that the witness has by virtue of his or her position in the business” that is the subject of the case, as opposed to “experience, training or specialized knowledge within the realm of an expert.” Id. (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)). Thus, the 2000 amendments to Rule 701 were “not intended to affect the ‘prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.’” Tampa Bay, 320 F.3d at 1222 (quoting Fed. R. Evid. 701 Advisory Committee’s Notes). The Middle District of Georgia recently explained the distinction 2

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between lay opinion and expert opinion testimony: While the Eleventh Circuit has not specifically addressed the criteria necessary to determine whether a particular witness is a “fact witness” or an “expert witness” under Rule 26, courts in other jurisdictions consistently have held that a witness is not an expert witness merely by virtue of his specialized training and knowledge in a particular field. . . . Instead, a witness with specialized knowledge and training may be a pure “fact witness” when a witness is a direct participant in the events about which he is testifying. . . . However, if the testimony consists of “opinions based on scientific, technical, or other specialized knowledge,” the opinions may be considered expert testimony, regardless of whether those opinions were formed during the scope of interaction with a party prior to litigation. . . . Thus, to determine whether a particular witness is a “fact witness” or an “expert witness” under Rule 26, a court should look to the nature of the testimony being given. Morgan v. U.S. Xpress, Inc., No. 4:03-CV-88-1 (CAR), 2006 WL 278398, at *2 (M.D. Ga. Feb. 3, 2006) (Royal, J.) (citations omitted). Defendants contend that portions of the Whiteman, McNally, and Marks declarations contain opinions based on scientific, technical, or specialized knowledge, and, therefore, Whiteman, McNally, and Marks should have been identified as experts. Because the three were not identified as experts in this case, Defendants ask the Court to exclude the portions of the declarations which constitute expert opinions. The three declarations which Defendants seek to strike are from witnesses with personal knowledge of the subject matter and background of

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this case. While their education and experience may qualify them as experts, the majority of their reports are factual observations or opinions based on those factual observations. Moreover, Defendants asserted their enablement defense for the first time after the close of fact discovery. In his initial expert report, Defendants’ expert summarized the enablement defense in approximately three pages for each of the patents-in-suit. When the Court permitted the parties to conduct additional expert discovery on the issue of enablement, however, Defendants’ expert submitted an 80-page supplemental report in support of the enablement defense. With these principles and observations in mind, the Court GRANTS in part Defendants’ motion [#501] to the extent Defendant seeks to exclude purely expert opinions. At the same time, the Court recognizes that Plaintiff had little or no opportunity to address this issue during the initial period when expert reports were prepared and filed. As a result, rather than rule on each paragraph of the declarations in question, the Court will keep the necessary standard in mind when reviewing the declarations in connection with the pending summary judgment motions, and the Court will not give weight to any purely expert opinions contained in the declarations.

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SO ORDERED, this 9th day of April, 2009.

________________ JACK T. CAMP UNITED STATES DISTRICT JUDGE

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