369 F.Supp.2d 155 (2005) | Cited 2 times | D. Massachusetts | May 2, 2005


Having reconsidered its rulings on plaintiff's objection to andmotion to strike the introduction of portions of Steven Hogan'sdeposition testimony previously admitted, the Court sustainsplaintiff's objection to the introduction of said testimony andstrikes same. In raising its objection and motion to strike,plaintiff makes two arguments: first, that Hogan, a lay witness,improperly gave expert opinion testimony during his deposition,and, second, that portions of Hogan's lay testimony were notsufficiently corroborated.

The previously admitted portions of Hogan's deposition are notproper lay witness testimony because they contained opinionsbased on highly technical and specialized knowledge. Federal Ruleof Evidence 701(c) provides that "[i]f the witness is nottestifying as an expert, the witness' testimony in the form ofopinions or inferences is limited to those opinions or inferences which are . . . not based on scientific, technical, or otherspecialized knowledge within the scope of Rule 702."

Here, Hogan testified that it would have been "obvious" and/or"trivial" to use his callprocessing invention (1) to processprepaid cellular calls, (2) to use the ANI instead of the debitcard number to identify calls, and (3) to combine his inventionwith CSI's cellular switch proposal.

This testimony is not the type of lay opinion contemplated byRule 701, but falls within the realm of expert opinion describedin Rule 702. Hogan's opinions on obviousness and triviality werebased on his highly technical and specialized knowledge oftelecommunications. But Rule 701 explicitly bars lay witnessesfrom giving opinions based on technical or specialized knowledge.Instead, lay opinion is proper only when it involves a witness"stat[ing] his conclusions based upon common knowledge orexperience." United States v. Oliver, 908 F.2d 260, 263-64 (8thCir. 1990) (quoting Batsell v. United States, 217 F.2d 257, 262(8th Cir. 1954)). See United States v. Espino, 317 F.3d 788,796-97 (8th Cir. 2003) (permitting witnesses experienced in drugtrade to testify to weight and quantity of methamphetamine basedon prior experience with weighing same).

Here, it is undisputed that Hogan's opinions were not based onhis prior experience of actually processing prepaid cellularcalls, using an ANI to identify calls, or combining his inventionwith CSI's cellular switch proposal. Instead, they were derivedfrom his specialized knowledge of telecommunications. Applyinghis specialized knowledge to the aforementioned topics, Hogan wasthen able to conjecture an opinion with respect to theirtriviality or obviousness. This type of abstract opinion, whichis several degrees removed from Hogan's actual experience, is the classic type of expert testimonycontemplated by Rule 702. As a lay witness, Hogan simply was notcompetent to testify as such.1

Notwithstanding the plain language of Rule 701(c), defendantsargue that Hogan's opinions were admissible under Union PacificResources Co. v. Chesapeake Energy Corp., 236 F.3d 684, 692-93(Fed. Cir. 2001), in which the court permitted eight laywitnesses to give an opinion as to enablement. That case,however, is distinguishable on two grounds. First, the FederalCircuit applied the law of the Fifth Circuit, which, at thattime, "allowed lay witnesses to express opinions that requiredspecialized knowledge." Id. at 693. The Fifth Circuit rule isantithetical to Rule 701(c)'s express prohibition on a laywitness giving an opinion based on specialized knowledge.Compare Union Pacific, 236 F.3d at 693, with Fed.R.Evid.701(c).

Second, and more importantly, the trial judge's decision inUnion Pacific to admit the lay opinion testimony was madebefore the 2000 amendment to Rule 701. See Union Pacific,236 F.3d at 687. This 2000 amendment added the phrase "scientific,technical, or other specialized knowledge" that now constitutesRule 701(c). Prior to the 2000 amendment, Rule 701 did notexclude lay opinions based on scientific, technical, orspecialized knowledge.2 This lack of a prohibitionblurred the distinction between lay witnesses and expertwitnesses. 3 Christopher B. Mueller & Laird C. Kirkpatrick,Federal Evidence § 347 (2d ed. 1994 & Supp. July 2004). The purpose of the 2000 amendment was to ensure that witnesseswould fall into either the expert-witness or lay-witnesscategory. Indeed, the amendment . . . put an end to the blurring of the line between the two categories [of expert witnesses and lay witnesses], which had led to decisions allowing "lay" witnesses to testify more and more like experts, relying on training and experience and drawing conclusions that lay witnesses are not normally allowed to draw.Id.

In addition, the 2000 amendment would "eliminate the risk thatthe reliability requirements set forth in Rule 702 will be evadedthrough the simple expedient of proffering an expert in laywitness clothing." Fed.R.Evid. 701 advisory committee's note.Thus, "any part of a witness' testimony that is based uponscientific, technical, or other specialized knowledge within thescope of Rule 702 is governed by the standards of Rule 702 andthe corresponding disclosure requirements of the Civil andCriminal Rules."3 Id.

Based on Union Pacific's reliance on a Fifth Circuit rule andan outdated version of Rule 701, the Court rejects defendants'argument that Union Pacific dictates the admission of Hogan'slay opinions on obviousness and triviality.

Next, the Court strikes the portion of Hogan's testimonyconcerning his implementation of a prepaid system, referred to asLinkUSA, at a hotel in Iowa. Although Hogan's statements on this matter constituted proper lay testimony, defendants have notintroduced sufficient evidence to corroborate this testimony."[C]orroboration is required of any witness whose testimony aloneis asserted to invalidate a patent, regardless of his or herlevel of interest." Finnigan Corp. v. Int'l Trade Comm'n,180 F.3d 1354, 1369 (Fed. Cir. 1999). Here, the only evidencecorroborating Hogan's testimony about the implementation is aLinkUSA advertisement. This advertisement does not indicate thatHogan had in fact implemented the system, does not refer to ahotel system, and does not mention a transparent prepaid system.Accordingly, the Court rules that the advertisement isinsufficient to corroborate Hogan's testimony on this matter.

Therefore, upon reconsideration, the Court sustains plaintiff'sobjection and grants plaintiff's motion to strike the previouslyadmitted portions of Hogan's deposition testimony.


1. This is not to say that Hogan could not have so testifiedhad he been properly disclosed as an expert under Rule 26(a)(2)of the Federal Rules of Civil Procedure. As an inventor, Hoganwould qualify as one of exceptional skill in the art and wouldhave been competent to testify as to what would have been obviousto one of ordinary skill in the art. Endress + Hauser, Inc. v.Hawk Measurement Sys. Pty. Ltd., 122 F.3d 1040, 1042 (Fed. Cir.1997).

2. Prior to the 2000 amendment, Rule 701 provided as follows: 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 and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

3. For the sake of the record, the Court notes thatdefendants, with respect to Hogan, did not satisfy therequirements for expert witnesses. Defendants have not pointed toany instance during this litigation in which they disclosed Hoganas an expert witness. See Fed.R.Civ.P. 26(a)(2) (setting forthdisclosure requirement). Nor did defendants show, through theintroduction of expert reports or otherwise, that Hogan'sopinions were based upon sufficient facts or data, that Hogan'sopinions were the result of reliable principles and methods, orthat Hogan applied the principles and methods reliably to thefacts of this case. See Fed.R.Evid. 702 (listing criteria forexpert-opinion testimony).

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