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Magistrate Judge Thynge issues Report and Recommendation granting-in-part defendant Six Flag’s motion to exclude lay opinion testimony proffered by plaintiff Magnetar

Magistrate Judge Mary Pat Thynge recently considered defendants’ motion to exclude the testimony of Magnetar’s lay opinion witness — the founder and President of Magnetar, and named inventor on one of the patents-in-suit. Magnetar Techs. Corp., et al. v. Six Flags Theme Parks Inc., et al., C.A. No. 07-127-LPS-MPT (D. Del. Feb. 7, 2014). The witness had a bachelor’s degree in mechanical engineering and 43 years of experience working as an engineer. Id. at 2. Magnetar disclosed the witness with a list of 14 possible subject areas for his testimony. Defendants objected to four categories:

(1) relationship of Magnetar’s brakes to claim 3 of the ‘125 patent; (2) advantages of magnetic brakes over other types of brakes, including friction brakes; (3) importance of roller coasters to amusement park rides; and, (4) importance of magnetic brakes in the construction of roller coasters.

Id. at 5.

Judge Thyne analyzed the relevance of the proffered testimony under the Georgia-Pacific factors. Judge Thynge found the witness’s testimony relevant to factors one through three, seven and fifteen because his testimony regarding why he sought a license and the established royalty rate is relevent to a hypothetical negotiation. Id. at 6-9. Judge Thynge found, however, that the witness’s testimony was irrelevant under factors nine and ten. Id. at. 10-11. His testimony related to “the advantages of magnetic brakes over other types of brakes in commercial rides,” rather than the advantages of the patents-in-suit compared to other technology. Id. at 10 Because factor nine requires “a nexus . . . between magnetic brakes in general and the patented technology in the instant matter[,]” the witness’s testimony was irrelevant. Id. Judge Thynge also found the witness’s testimony irrelevant under factor eight, which requires evidence of the established profitability, commercial success and popularity of the patented product. Id. at 12. Likewise, the witness’s testimony was irrelevant under factor thirteen for failing to offer evidence “attributing revenue to non-patented elements of roller coasters.” Id. at 13.

Judge Thynge then analyzed whether the relevant categories of the witness’s testimony was appropriate lay opinion testimony under Federal Rule of Evidence 701. Id. at 17. Rule 701(a) requires the witness to have first-hand knowledge such that “the witness’s perception provide[s] a truly rational basis for his or her opinion.” Id. at 17-18. Judge Thynge found the witness qualifed under Rule 701(a) because he had “more than mere first-hand knowledge of the relationship of Magnetar’s brakes to claim 3 of the [patent-in-suit]–he directly participated in negotiations of the license agreement between Magnetar and G&T.” Id. Judge Thynge also found the witness qualified under Rule 701(b). The witness had “sufficient personal knowledge of the [patent-in-suit], Magnetar’s brakes, and the license agreement between Magnetar and G&T.” Id. at 19.

Magnetar Techs. Corp., et al. v. Six Flags Theme Parks Inc., et al., C.A. No. 07-127-LPS-MPT (D. Del. Feb….

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