Sloan Valve Co. v. Zurn Indus., Inc., No. 10 C 204, Slip Op. (N.D. Ill. Aug. 23, 2013) (St. Eve, J.).
Judge St. Eve granted defendants’ (collectively “Zurn”) Daubert motion in limine to exclude plaintiff Sloan Valve’s “corporate intellectual property practice” expert in this patent infringement case involving flush valves for use in plumbing fixtures. Zurn argued that the expert’s opinions regarding willfulness should not be allowed because they had not been sufficiently disclosed in the expert’s report. The expert sought to opine that Zurn had acted inconsistent with “normal standards of fair commerce”, thus making Zurn’s conduct was willful. The Court excluded those opinions because “normal standards of fair commerce” was never identified or discussed in the expert’s disclosures and reports. Furthermore, there were no corporate standards or other evidence of “normal standards of fair commerce” identified as having been considered by the expert in relation to his report. The Court also noted that Sloan Valve’s arguments regarding the purposes and testimony of the expert’s opinions had shifted throughout the briefing and hearing. And Sloan Valve’s failure to disclose the normal standards or corporate policies was not harmless or substantially justified. Without at least some notice of them, Zurn was unable to properly respond to them.