X hits on this document

PDF document

Attorneys for Microsoft Corporation - page 13 / 74

160 views

0 shares

0 downloads

0 comments

13 / 74

approach at its highest level of generality, but “to all aspects of an expert’s testi- mony.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007).

Thus, in Kumho Tire, the Court held that an expert’s opinion was properly excluded where, although there was no question as to “the reasonableness in gen- eral of” a tire expert’s “general theory,” the expert’s “more specific theory”—i.e., his “particular method of analyzing the data”—was unreliable. 526 U.S. at 153-54 (emphasis in original). As other circuits have recognized, “any step that renders the analysis unreliable renders the expert’s testimony inadmissible . . . whether the step completely changes a reliable methodology or merely misapplies that method- ology.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir. 2009); Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 n.10 (5th Cir. 1998) (en banc); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).

Mr. Wagner’s “baseline royalty rate” analysis is plainly an unreliable meth- odology. See supra n.1. The panel decision’s conclusion that because Microsoft did not attack the hypothetical-negotiation framework in toto, the “various weak- nesses” that Microsoft “ably point[ed] out” in the baseline royalty analysis amounted only to “disagreements . . . with Wagner’s conclusions, not his method- ology,” slip op. 31, cannot be squared with Kumho Tire or regional circuit law.

Second, though Rule 702 explicitly requires courts to ensure that “the wit- ness has applied the principles and methods reliably to the facts of the case,” the panel decision apparently deemed this requirement “satisfied” by Mr. Wagner’s “methodical explication of how he applied the [hypothetical negotiation] model to the relevant facts.” Slip op. 31. The decision’s failure to independently analyze

5

Document info
Document views160
Page views160
Page last viewedSat Dec 03 04:45:09 UTC 2016
Pages74
Paragraphs2162
Words19614

Comments