Free Motion in Limine - District Court of Arizona - Arizona

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Sid Leach (#019519) Monica A. Limón-Wynn (#019174) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6372 Facsimile: (602) 382-6070 [email protected] [email protected] Attorneys for Plaintiff Hypercom Corporation IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendant. No. CV 04-0400-PHX-PGR HYPERCOM CORPORATION'S MOTION IN LIMINE REGARDING EXPERT TESTIMONY CHARLES BERMAN; OR IN THE ALTERNATIVE, REQUEST FOR DAUBERT HEARING

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Plaintiff Hypercom Corporation ("Hypercom") requests that the Court enter an order precluding Omron Corporation ("Omron") from using, referencing or presenting at trial the opinions, testimony or report of expert witness Charles Berman. The testimony, report and opinion of Omron's expert Charles Berman are not relevant and not reliable. Mr. Berman's testimony, report and opinions are not based upon information that was known by either Verve or Omron when Verve filed the malicious complaints against Hypercom, or at any time during the pendency of the proceedings against Hypercom. Instead, Mr. Berman based his opinion upon after-the-fact information that Mr. Berman independently obtained long after the malicious patent infringement claims asserted against Hypercom had all been terminated in Hypercom's favor. In the alternative, Hypercom requests the Court conduct a Daubert hearing to determine whether Mr. Berman should be precluded from testifying at trial. This Motion is supported by the following memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES I. VERVE HAS BEEN FOUND LIABLE FOR BRINGING LAWSUITS ALLEGING PATENT INFRINGEMENT AGAINST HYPERCOM WITHOUT FIRST CONDUCTING AN ADEQUATE PRE-FILING INVESTIGATION Hypercom brought this action seeking to hold Omron liable for damages that Hypercom suffered due to Verve LLC's filing of multiple patent infringement lawsuits, and instigating an investigation before the International Trade Commission, against Hypercom without probable cause. In its Complaint, Hypercom alleges that Omron should be held liable for these damages because: (1) Omron is liable as a co-conspirator for Verve's actions in bringing and maintaining malicious lawsuits (and the ITC investigation) against Hypercom; (2) Omron aided and abetted Verve in the torts of malicious prosecution and abuse of process, and aided and abetted Raymond Galasso's unreasonable and vexatious multiplication of the proceedings against Hypercom, and (3) Omron is liable as an instigator of the malicious lawsuits and the malicious ITC investigation against Hypercom. In Verve LLC v. Hypercom Corp., No. CV-05-0365-PHX-FJM, 2006 U.S. Dist. LEXIS 58398 (D. Ariz. Aug 16, 2006), Verve was found liable for the torts of malicious prosecution and abuse of process, and Raymond Galasso was found liable for unreasonably and vexatiously multiplying the proceedings against Hypercom within the meaning of 28 U.S.C. § 1927 (hereinafter "the Verve Case"). In the Verve Case, the Court concluded that Hypercom had established "malice" through Counterdefendants' conduct of "wholly insufficient pre-filing investigation," continuing to pursue claims in various jurisdictions after it had been established that Verve lacked standing to maintain them; and representing that Verve was a proper patent owner while knowing that Omron held substantial rights in the patents, and "the tactic of filing multiple lawsuits in multiple jurisdictions without a reasonable explanation for doing so." Verve LLC v. Hypercom Corp., at *14.

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On October 26, 2006, after a four-day trial, a unanimous jury awarded compensatory damages and punitive damages against Verve, Verve's principals, and Verve's lawyers, and in favor of Hypercom. On January 9, 2007, Final Judgment was entered in the Verve Case against Verve, LLC, Raymond Galasso, Kevin Imes, and the Simon, Galasso & Frantz law firm, jointly and severally. (A copy of the Final Judgment is attached hereto as Exhibit 1.) Mr. Berman was offered as an expert witness during the trial of the Verve Case, and his testimony was excluded. (Exhibit 7, Transcript of Proceedings, Vol. IV, dated October 24, 2006, at 761-62.) In response to a question from Judge Martone, Mr. Berman confirmed that he was not retained to express an opinion in connection with the state of mind of the defendants before or at the time of the filing of the malicious lawsuits against Hypercom. (Id., Tr. at 804.) Mr. Berman did not perform his investigation and analysis until April 2006. (Exhibit 6, Deposition of Charles Berman dated June 22, 2006 ("Berman Depo.") at 17.) Mr. Berman was not retained by Omron until April 2006. (Exhibit 6, Berman Depo. at 17.) All of his independent investigations of publicly available information concerning Hypercom's products occurred long after all of the claims against Hypercom had been dismissed or terminated. Exhibit 8. Moreover, Berman's expert report was limited to a single Hypercom product that was not accused of infringement in any of the complaints filed against Hypercom. (Exhibit 6, Berman Depo. at 8; see also Exhibit 3, 4 & 5.) Mr. Berman did not consider the Hypercom products actually accused of infringement, i.e., the ICE 6000 terminal, the T7 terminal, or the T8 terminal. (Exhibit 6, Berman Depo. at 8.) There is nothing in Mr. Berman's expert reports offering any opinion as to Omron's state of mind concerning the commencement or continuation of the proceedings against Hypercom, and by the time Mr. Berman was retained by Omron, all of the claims asserted against Hypercom had been dismissed or terminated. Exhibit 8. In the Verve Case, Judge Martone affirmed his ruling excluding Mr. Berman's expert testimony when Verve's post-trial motions were denied, and noted, "The record makes clear that neither
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expert was retained to express an opinion regarding counter-defendants' state of mind." Exhibit 9, at 3-4. Liability for malicious prosecution may also be based upon the continuation of a proceeding beyond the point that a reasonably prudent man would have continued to prosecute the asserted claim. Thus, the relevant state of mind that is at issue in this case must be based upon what Omron (and Verve) knew at the time the proceedings were instituted, and while the claims against Hypercom continued to be asserted. "The test generally applied is whether, upon the appearances presented ... a reasonably prudent man would have instituted or continued the proceeding." Slade v. City of Phoenix, 112 Ariz. 298, 301, 541 P.2d 550, 553 (1975); see also McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425, 431 (1953) (Court refers to "institution or continuation of an action without probable cause" as an element of malicious prosecution). II. THE TESTIMONY OF CHARLES BERMAN IS NOT RELEVANT BECAUSE IT IS BASED SOLELY ON HIS AFTER-THE-FACT INVESTIGATION In a malicious prosecution case, the issue of lack of probable cause must be analyzed based on the facts known at the time the underlying lawsuits were filed. Bradshaw v. State Farm Mutual Auto. Ins. Co., 157 Ariz. 411, 417-418, 758 P.2d 1313, 1319-20 (1988) (the "relevant questions are whether, at the time it filed the wrongful death action, State Farm believed a jury might find its case meritorious and whether that belief was reasonable") (emphasis in original). To the extent that liability is based upon a continuation of the malicious proceedings, the analysis would have to be based upon facts known to Omron while the proceedings were still pending. Thus, the challenged expert testimony is irrelevant to the question of probable cause or Omron's good faith at the time the malicious proceedings were instituted, or during any other relevant period of time, because Mr. Berman's expert report was based solely upon information that was not known to Omron (or Verve) during the time that any of the malicious proceedings were pending. Hydranautics v. FilmTec Corp., 204 F.3d 880, 886 (9th Cir. 2000) ("[T]he lack of probable cause question must be answered based upon the facts actually known to
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FilmTec at the time it prosecuted its patent application and infringement case, and not on the facts it actually presented."). Information obtained subsequent to the filing of the lawsuits is irrelevant to the question of whether there was probable cause at the time the malicious complaints were filed. Id.; Hite v. Triton Energy Ltd., No. 99-56975, 2002 U.S. App. LEXIS 7518, 35 Fed. Appx. 434, 437 (9th Cir. April 23, 2002) ("[A]11 events subsequent to the filing of the allegedly malicious lawsuit ... are irrelevant to the question of probable cause.") (unpublished); Gill v. Kostroff, 82 F. Supp.2d 1354, 1364 (M.D. Fla. 2000) ("A determination of whether probable cause exists is based on the facts known by the defendant in the malicious prosecution action at the time the underlying action was initiated, not some later point in time."); Martin Centers v. Dollar Markets, 99 Cal. App.2d 534, 543, 222 P.2d 136 (Cal. App. 2d Dist. 1950) ("The knowledge of facts which may justify the alleged malicious prosecution is that which is possessed at the time of its occurrence; not that which is subsequently acquired."). Omron and its co-conspirator Verve were required to investigate the basis for the patent infringement claims against Hypercom before the lawsuits were filed, not after. View Engineering, Inc. v. Robotic Vision Systems, Inc., 208 F.3d 981, 986 (Fed. Cir. 2000) ("In bringing a claim of infringement, the patent holder, if challenged, must be prepared to demonstrate to both the court and the alleged infringer exactly why it believed before filing the claim that it had a reasonable chance of proving infringement.") (emphasis added). It is improper to file malicious lawsuits first and then try to investigate whether there was any evidentiary support for the malicious claims later. Burnette v. Godshall, 828 F. Supp. 1439, 1448 (N.D. Cal. 1993) ("Plaintiffs attorney chose to `file first and investigate later,' which is unacceptable."), aff'd, 72 F.3d 766 (9th Cir. 1995); Garr v. United States Healthcare, Inc., 22 F.3d 1274, 1279 (3d Cir. 1994) (if a reasonable inquiry has not been conducted, attorney will not be shielded from sanctions by "the stroke of luck that the document happened to be justified").

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Mr. Berman was not retained by Omron until April 2006. (Exhibit 6, Berman Depo. at 17.) After he was retained, he independently conducted his own investigation of publicly available materials and reached his opinions without regard to what information, if any, was known to Omron during any relevant time period. Mr. Berman did not perform his investigation and analysis until April 2006, which was after-the-fact. (Exhibit 6, Berman Depo. at 17.) All of his independent investigations of publicly available information concerning Hypercom's products occurred long after all of the claims against Hypercom had been dismissed or terminated. Exhibit 8. Moreover, Berman's expert report was limited to a single Hypercom product that was not accused of infringement in any of the complaints filed against Hypercom, and thus failed to consider the relevant Hypercom products that were actually accused of infringement. (Exhibit 6, Berman Depo. at 8; see also Exhibit 3, 4 & 5.) There is nothing in Mr. Berman's expert report offering any opinion as to Omron's state of mind concerning the commencement or continuation of the proceedings against Hypercom, and by the time Mr. Berman was retained by Omron, all of the claims asserted against Hypercom had been dismissed or terminated. (Exhibit 9, at 3-4 ("The record makes clear that neither expert was retained to express an opinion regarding counterdefendants' state of mind."); Exhibit 7, Tr. at 804; Exhibit 8.) Omron's expert Charles Berman cannot rely on information about Hypercom's terminals obtained as a result of after-the-fact investigations performed by him long after the malicious lawsuits and the ITC investigation had been terminated. When initiating the original cause of action, the defendant in a malicious prosecution action could only rely on information that was obtained by the time the action was initiated, as opposed to information later gained through discovery, indepth inquiry, and communications. Gill v. Kostroff, 82 F.Supp.2d 1354, 1364 (M.D. Fla. 2000) (emphasis added). In short, it is irrelevant that Mr. Berman may have an opinion, if one considers information obtained after-the-fact that was not known to Omron or Verve, that there

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might be a basis for believing that some Hypercom product infringed even though that product was never actually accused of infringement by Omron or Verve. III. THE "PROBATIVE VALUE," IF ANY, OF CHARLES BERMAN'S TESTIMONY IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF CONFUSION OF THE ISSUES AND MISLEADING THE JURY Additionally, the expert testimony of Berman should be excluded under Rule 403 of the Federal Rules of Evidence. The Ninth Circuit has noted that expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, a trial judge in weighing possible prejudice against probative force under Rule 403 exercises more control over experts than lay witnesses. Jinro America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1005 (9th Cir. 2001). In the Jinro case, the Ninth Circuit reversed the district court for failing to exclude expert testimony under Rule 403. 266 F.3d at 1005 ("[W]e conclude that the district court abused its discretion in admitting Pelham's testimony for two reasons: it was not reliable and, in any event, it was unduly prejudicial and should have been excluded under Rule 403."). Id., quoting from Daubert I, 509 U.S. at 595. It would be prejudicial and unfair to allow Charles Berman to testify that based on information that neither Verve nor Omron ever considered prior to bringing their malicious lawsuits or while the proceedings were pending, a "reasonable suspicion" might exist for accusing Hypercom products of infringement. Permitting a witness labeled as an "expert" to offer such an opinion unsupported by a sufficient factual foundation that Omron or Verve even had knowledge of such information will mislead the jury and confuse the issues. In addition, it will confuse the issues if Mr. Berman is allowed to express his opinion concerning a Hypercom product that was not the basis upon which Verve accused Hypercom of infringement. United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir. 2002) ("[E]ven if [expert] testimony is admissible under Rule 702, it still must pass muster under Rule 403: Its probative value must not be substantially outweighed by unfair prejudice."), cert. denied, 124 S. Ct. 2832 (2004).

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Given the realities of litigation, the opinion of a witness impressed by the court with the label of "expert" may carry a great deal of weight with a lay jury, particularly in [complex] matters . . . . Permitting such a witness to offer an opinion unsupported by a sufficient factual foundation would significantly increase the risk of misleading the jury and confusing the issues, the very dangers against which Rule 403 defends. Elcock v. Kmart Corporation, 233 F.3d 734, 756 (3d Cir. 2000). A. Charles Berman's Expert Report Is Not Relevant Because it Involves Terminals Not At Issue in the Underlying Lawsuits

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Charles Berman's methodology is reminiscent of the old joke in which a couple walking along the street notice a man on his hands and knees under a street light and ask him what he is doing. When the man responds that he is searching for a watch he dropped half a block away, the couple asks him why he is he isn't looking where he dropped it. The man replies, "Because the light is better here." In this instance, Mr. Berman says he examined two of Hypercom's terminals that were unrelated to the patent litigation because he had more information on those units. (Exhibit 6, Berman Depo. at 8.) The expert report of Charles Berman is limited to an opinion concerning whether "the point of sale (POS) terminals sold by Hypercom Corporation, namely the ICE 5000/5500 Series POS terminals, infringe upon the asserted claims in `341, `895, or `077 patents. . . ." (Exhibit 2, Expert Report of Charles Berman dated April 17, 2006 ("Berman Report") at 2-3.) However, the Hypercom ICE 5000/5500 Series terminals were not accused of infringement in any of the malicious lawsuits filed against Hypercom based upon Omron's patents. In the Michigan lawsuit, Verve accused Hypercom's T7 Series terminals of infringement of the `895 patent. (Exhibit 3, Michigan Complaint dated September 11, 2003 at 2.) In the Texas lawsuit, Verve accused Hypercom's ICE 6000 terminals of infringement of the `341 patent. (Exhibit 4, Texas Complaint dated February 4, 2004 at 3.) The ITC investigation accused the Hypercom ICE 6000 terminal and T8 terminal of infringement, but not the ICE 5000/5500 Series. (Exhibit 5, ITC Complaint dated July 30, 2004 at 6.) The California lawsuit was filed a month after the ITC complaint was filed
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based upon the same patent that was asserted against Hypercom in the ITC investigation. Exhibit 8. No additional investigation of Hypercom's products was performed in between the July 30, 2004 filing date of the ITC complaint and the August 30, 2004 filing of the California lawsuit. Verve LLC v. Hypercom Corp., No. CV-05-0365-PHX-FJM, 2006 U.S. Dist. LEXIS 58398, at *9 (D. Ariz. Aug 16, 2006). Thus, the California lawsuit failed to accuse any other Hypercom products of infringement of the same patent asserted in the ITC investigation other than the Hypercom ICE 6000 terminal and T8 terminal. In short, the ICE 5000/5500 Series terminal that was analyzed by Berman was not accused of infringement in any of the malicious complaints that were filed against Hypercom. Charles Berman testified in his deposition that he selected the ICE 5000/5500 Series product for his analysis because "the most information was available" to him for that product. (Exhibit 6, Berman Depo. at 8.) Berman also admitted that his expert report did not include any analysis of the Hypercom products actually accused of infringement, i.e., the ICE 6000 terminal, the T7 terminal, or the T8 terminal. (Exhibit 6, Berman Depo. at 8.) B. Berman's Expert Opinion Is Not Relevant Because It Is Based Upon Berman's Own After-The-Fact Investigation about Hypercom Terminals Not at Issue in the Underlying Lawsuits

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Berman's expert testimony cannot satisfy the relevancy test under Daubert. The conclusions Berman draws based on an investigation undertaken years after Verve filed its lawsuits are irrelevant to the investigation that Verve and Omron were required to undertake prior to suing Hypercom. His opinion testimony is irrelevant to Omron's state of mind while the proceedings were pending against Hypercom. Further, Berman's opinion concerning a product that was not accused of infringement in the complaints filed by Verve is irrelevant to the issues here. The issues of whether Omron aided and abetted Verve in committing acts of malicious prosecution and abuse of process, or whether Omron's evil hand was guided by an evil mind at that time, do not involve patent infringement claims that were asserted against Hypercom's 5000/5500 Series products.

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Expert testimony must be based on "sufficient facts or data" and on "reliable principles and methods" that the expert "witness has applied reliably to the facts of the case." United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir. 2002) (emphasis added), cert. denied, 124 S.Ct. 2832 (2004). Berman's expert infringement analysis of the ICE

5000/5500 Series terminals does not apply to the facts of this case. IV. OMRON'S EXPERT WITNESS SHOULD NOT BE PERMITTED TO TESTIFY AT TRIAL In the Ninth Circuit, "[t]he general test regarding the admissibility of expert testimony is whether the jury can receive `appreciable help' from such testimony."

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United States v. Gwaltney, 790 F.2d 1378, 1381 (9th Cir. 1986), cert denied, 479 U.S.
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1104 (1987). Because unreliable and unfairly prejudicial expert witness testimony is not
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helpful to the trier of fact, the trial court should exclude such evidence. Jinro America
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Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004 (9th Cir. 2001).
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In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the
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Supreme Court imposed a special gatekeeping obligation upon a trial judge to make a
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preliminary assessment of the admissibility of expert scientific testimony. Specifically,
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the Court held that, "the trial judge must ensure that any and all scientific testimony or
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evidence admitted is not only relevant, but reliable." Id. at 589. In making a preliminary
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assessment, the trial court engages in a two-part inquiry. First, the court must determine
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whether the expert's testimony reflects "scientific knowledge," that is, "whether their
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findings are `derived by scientific method,' and whether their work product amounts to
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`good science.'" Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th
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Cir.), cert. denied, 516 U.S. 869 (1995). Second, the court must determine whether the
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proffered expert testimony is relevant, "i.e., that it logically advances a material aspect of
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the proposing party's case." Id.
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V.

CONCLUSION For the foregoing reasons, Hypercom requests that the Court enter an Order

precluding Omron Corporation from using, referencing, or presenting at trial the

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testimony, opinions, or report of Charles Berman. In the alternative, Hypercom requests the Court conduct a Daubert hearing to determine whether Omron's experts Charles Berman should be precluded from testifying at trial. RESPECTFULLY SUBMITTED this 13th day of April, 2007. SNELL & WILMER L.L.P.

By s/ Sid Leach Sid Leach Monica A. Limón-Wynn One Arizona Center 400 E. Van Buren Street Phoenix, AZ 85004-2202 Attorneys for Plaintiff Hypercom Corporation

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STATEMENT OF MOVING COUNSEL The undersigned certifies that after personal consultation and sincere efforts to do so, counsel for Hypercom and counsel for Omron have been unable to satisfactorily resolve the matters presented in this motion. s/ Sid Leach

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CERTIFICATE OF SERVICE I hereby certify that on April 13, 2007, I electronically transmitted HYPERCOM CORPORATION'S MOTION IN LIMINE REGARDING EXPERT TESTIMONY CHARLES BERMAN; OR IN THE ALTERNATIVE, REQUEST FOR DAUBERT HEARING to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: David P. Irmscher John K. Henning, IV BAKER & DANIELS 300 N. Meridian Street, Suite 2700 Indianapolis, IN 46204 Phone: 317-237-1317 Fax: 317-237-1000 [email protected] [email protected] Attorneys for Defendant Omron Corporation Paul Moore Ray K. Harris FENNEMORE CRAIG, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Phone: 602-916-5414 Fax: 602-916-5614 [email protected] [email protected] Attorneys for Defendant Omron Corporation s/ Sid Leach A. Colin Wexler Matthew A.C. Zapf GOLDBERG KOHN BELL BLACK ROSENBLOOM & MORITZ, LTD. 55 E. Monroe Street, Ste. 3300 Chicago, IL 60603 Ph. 312-201-4000 Fax: 312-332-2196 [email protected] [email protected] Attorneys for Defendant Omron Corporation H. Michael Clyde Todd R. Kerr PERKINS COIE BROWN & BAIN P.A. 2901 N. Central Ave., Ste. 2000 Phoenix, AZ 85012-2788 Ph.: 602-351-8000 Fax: 602-648-7000 [email protected] [email protected] Attorneys for Defendant Omron Corporation

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