Eastern District of Texas Federal Court Practice

Swinging at Experts in Sherman

Williams v. Toyota Motor Corp., 2009 WL 305139(E.D.Tex. Feb 06, 2009) (NO. 4:08-CV-487)
Williams v. Toyota Motor Corp., 2009 WL 305183(E.D.Tex. Feb 06, 2009) (NO. 4:08-CV-487)
These two opinions represent Judge Schell's rulings on the parties' respective motions to exclude certain of the other's experts and Toyota's motions for summary judgment in this product liability case.
In the first, 2009 WL 305183, Toyota sought to exclude plaintiff's experts Syson, Ward and Mango.  With respective to Syson and Ward the defendant alleged general Daubert unreliability, and Judge Schell decided that the opinions set forth in the reports were sufficiently reliable to go to the jury.  With respect to Mango, a rebuttal expert, Toyota argued that he wasn't really rebuttal, and even if he was the plaintiff was two days late with the rebuttal report.  Judge Schell held that yes, he was rebuttal, and that Toyota hadn't shown (or even alleged) harm from the two day delay.  Accordingly, the summary judgment motion on design defect was denied.  With respect to the marketing defect claims, however, Judge Schell held that the plaintiff had not adduced any evidence in the support of the claims - only that it would.  Finding this insufficient to create a fact issue in response to a summary judgment motion, Judge Schell granted the summary judgment motion on the plaintiff's marketing defect claims.
The second, 2009 WL 305139, is the interesting one.  Here, plaintiff filed a Daubert challenge to the defendant's metallurgical expert.  Basically, the defendant designated a metallurgical expert who provided a report that was pretty thin - then after the plaintiff responded provided a supplemental report with the meat of the analysis, which, oddly, was done before the date of the original report yet not included in it.  Judge Schell concluded that the defendant's supplemental report should be stricken, since supplemental reports are not intended to present a completely new analysis, and there was no reason given why a metallurgical analysis expert didn't include a metallurgical analysis in his original report - especially since the record was clear that he'd done it prior to then.  That having been done, Judge Schell analyzed the plaintiff's Daubert motion as to the expert's original report, and found it insufficient.   "What is absent from the report," the Court wrote, "is any discussion of methodology, relevant literature or scientific testing. The Fifth Circuit has stated that “a reliable methodology is in all instances mandatory ... and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.” Dr. Fowler's conclusions due not appear from the report to be based on a reliable methodology. The report contains a series of subjective opinions, which have long been insufficient for the admission of purported expert testimony."  (Internal citation omitted). Accordingly the motion to exclude the expert testimony was granted.

"Top Down" with Judge Schell's '68 Mustang

Featured in the current issue of Texoma Living! is Judge Schell's 1968 Mustang convertible, given to him by his father when he was a freshman at SMU.  Sweet car, your honor.

Summary Judgment Granted in part in pizza case

Great American Restaurant Co. v. Domino's Pizza LLC, 2008 WL 2277828(E.D.Tex. May 29, 2008) (NO. 4:07-CV-52)
Judge: Richard Schell
Holding: Defendant's Motion for Summary Judgment GRANTED in part.
Judge Schell adopted the findings and conclusions of Judge Bush in this opinion, which contained proposed findings of fact and recommendations for the disposition of the Defendants' Motion for Summary Judgment and the Plaintiff's Motion for Summary Judgment.  Accordingly, he ordered that the Defendants' Motion for Summary Judgment be granted in part. With the exception of the Plaintiff's claim for damage to business reputation pursuant to Tex. Bus. & Com.Code § 16.29, the Plaintiff's remaining claims were dismissed with prejudice. That claim was dismissed without prejudice to the refiling of the same in the appropriate state court. The Plaintiff's Motion for Summary Judgment was denied as moot.

Jury Demand and "Negative Defenses" Stricken

F.T.C. v. Think All Pub., L.L.C., 2008 WL 793579(E.D.Tex. Mar 24, 2008) (NO. 4:07-CV-011)
Judge: Richard Schell
Holding: Plaintiff's Motion to Strike Defendants' Demand for a Jury Trial and Affirmative Defenses GRANTED in part
Plaintiff Federal Trade Commission (“FTC”) brought this action against the defendants.  Defendants demanded a jury trial, but Judge Schell noted that the statute in question does not provide a right to a trial by jury.  With respect to the various defenses the FTC asked to be stricken, Judge Schell ordered seven stricken as they were essentially "negative defenses", but allowed two to remain.

Motion for Entry of Protective Order Denied

Stone Connection, Inc. v. Simpson, 2008 WL 1927033 (E.D.Tex.April 28, 2008) (No. 4:07-CV-431)
Judge: Richard A. Schell

Holding: Motion for entry of Protective Order DENIED.

The plaintiff moved the court for a protective order, seeking to protect discovery relating to trade secrets and confidential and/or proprietary information pursuant to Rule 26(c)(1)(G). One of the defendants didn’t oppose the plaintiff’s motion, but the court agreed with the opposing defendants’ contention that the plaintiff failed to make the requisite showing of good cause. The court said that the plaintiff’s mere conclusory statement that since this case involves trade secrets and/or confidential and proprietary information, the court should issue a protective order was not sufficient. The plaintiff needed to provide the court with a particular or specific demonstration of fact. (He needed to provide SOMETHING!!)

Defense win in Sherman patent case

Dell USA L.P. v. Lucent Technologies, Inc., (NO. 4:03-CV-347)
Judge: Richard Schell
This one was under the radar - didn't even show up on the Eastern District's court calendar and the docket does not yet have any entries dealing with the trial - but  it's my understanding from media reports that yesterday Judge Schell's court in Sherman returned a verdict for defendant Lucent Technologies in a patent case involving touch-screen technology.  I had posted on the Markman opinion over a year ago ago - it's reported at 2006 WL 3166363 (E.D.Tex. Nov 02, 2006).
The verdict isn't posted yet, nor are any of the trial proceedings.  If this is a trial outcome, then 2008 starts off like 2007 ended - with a defense win (2007 ended up two plaintiff wins to seven defense wins at trial, if my math is correct). 

Right to Arbitration Waived by Participation in Litigation

Phillips Staffing Services, Inc. v. Spherion Atlantic Workforce, L.L.C., 2007 WL 922149(E.D.Tex. Mar 23, 2007) (NO. 405-CV-407)
Judge: Richard Schell
Holding: Motion for More Definite Statement/Motions to Dismiss DENIED
Judge Schell denied the various motion, and in doing so held that the defendant had waived its right to insist on arbitration by participating in the pending litigation for an extended period without asserting its rights under the arbitration agreement.

Motion for Summary Judgment Granted in Age Discrimination Case

Todd v. Alcatel USA Resources, Inc., 2007 WL 1115244(E.D.Tex. Apr 13, 2007) (NO. 4:05CV223)
Judge: Richard Schell
Holding: Defendant's Motion for Summary Judgment GRANTED

Motions to Dismiss Claims of Religious Pencil Infringement Denied

Morgan v. Plano Independent School Dist., 2007 WL 1030633(E.D.Tex. Mar 22, 2007) (NO. 404CV447)
Morgan v. Plano Independent School Dist., 2007 WL 1030833(E.D.Tex. Mar 22, 2007) (NO. 404CV447)
Judge: Richard Schell/Don Bush
Holding: Motions to Dismiss DENIED
Plaintiffs alleged that during the winter break party in December of 2001, Michaela Wade was permitted to pass out gifts to her classmates that contained secular messages, such as snowmen or snowflakes, but that she was prohibited from distributing pencils with “Jesus is the Reason for the Season” affixed to them. Plaintiffs further allege that school officials and teachers were instructed by PISD to censor all religious material from the winter break parties in December of 2001.
Defendants' motion to dismiss (in WL '633) involved claims relating to: (1) the Wades' claims relating to the December 2001 parties; (2) the Wades' claims relating to the December 2002 parties; (3) all Plaintiffs' claims for intentional infliction of emotional distress; (4) the Vershers' claims relating to declaratory relief, injunctive relief and future damages; and (5) Plaintiffs' claims relating to the December 2004 winter parties.  The magistrate judge recommended denying the defendants' motion to dismiss, and Judge Schell adopted the report.  In the WL '833 case the magistrate judge recommended, and Judge Schell agreed, that Defendants' Motion to Dismiss one of the plaintiff's claims should be denied. 

Eastern District - Sherman Improper Venue in Trade Secrets Case

Carreker Corp. v. Cannon, 2007 WL 869570(E.D.Tex. Mar 21, 2007) (NO. CIV.A. 4:06CV175)
Judge: Richard Schell
Holding: Motion to Dismiss DENIED; Motion to Transfer GRANTED
Apparently the magistrate judge in this case recommended transfer to the Northern District of Texas - Dallas Division.  Judge Schell agreed, but also held that venue was not proper in the Eastern District in the first place.