Nielsen v. Alcon Inc et al, No. 3:2008cv02239 - Document 197 (N.D. Tex. 2011)
Court Description: ORDER denying 180 Motion for Summary Judgment. ; denying 182 Motion for Summary Judgment. ; adopting Report and Recommendations re 192 Findings and Recommendations on Case. (Ordered by Judge Jane J Boyle on 9/30/2011) (Judge Jane J Boyle)
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Nielsen v. Alcon Inc et al Doc. 197 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JAMES M. NIELSEN, M.D., Plaintiff, v. ALCON, INC. and ALCON LABORATORIES, INC., Defendants. § § § § § § § § § § CIVIL ACTION NO. 3:08-CV-2239-B ORDER OVERRULING DEFENDANTS’ OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION Before the Court are the Magistrate Judge’s Findings and Recommendation (“F&R”) on the parties’ cross motions for summary judgment filed September 2, 2011 (doc. 192), and Defendants Alcon, Inc.’s and Alcon Laboratories, Inc.’s (“Alcon”) Objections filed September 16, 2011 (doc. 195). The F&R recommends that Defendants’ Motion for Summary Judgment filed January 24, 2011 (doc. 180) and Plaintiff’s James M. Nielsen, M.D.’s (“Nielsen”) Cross Motion for Partial Summary Judgment filed February 24, 2011 (doc. 182) both be denied. Alcon’s Objections dispute several of the Magistrate’s findings and argue that the Magistrate improperly recommended denial of Alcon’s Motion for Summary Judgment based on the errors identified in the Objections. After conducting a de novo review pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b) of the pleadings, files and records in this case as well as the F&R, Alcon’s Objections, and Nielsen’s response to these objections, the Court is of the opinion that the Findings and Recommendation are correct and Defendants’ Objections should be overruled. Regarding Alcon’s Objections 1-3, the Court finds that the portions of the F&R objected to Dockets.Justia.com are merely summaries or dicta not necessary to the Magistrate’s Findings. The Court also finds that these findings objected to are not erroneous. Accordingly, Objections 1, 2, and 3 are hereby OVERRULED. To the extent that Alcon seeks to exclude the testimony and findings of Nielsen’s expert Dr. Duncan Moore (“Dr. Moore”) as inadmissible under Federal Rule of Civil Procedure 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and related Fifth Circuit law, the Court agrees with the Magistrate Judge’s finding that Nielsen has produced sufficient evidence at the summary judgment stage to meet his burden of showing that the methodology employed by Dr. Moore was reliable.1 Given that Nielsen has met his burden of showing that Dr. Moore’s methodology was reliable, both Alcon’s objections to Dr. Moore’s testimony and its objections to Magistrate Judge’s findings that genuine issues of material fact exist based on this testimony are overruled. Accordingly, Objections 4, 5, 6, 7, and 8 are hereby OVERRULED. Further, the Court finds that, based on the parties’ summary judgment evidence, there are genuine issues of material fact regarding 1) when Nielsen conceived his invention, 2) when Nielsen reduced his invention to practice, 3) whether Nielsen acted diligently in reducing his invention to practice, and 4) whether Nielsen’s patent should be invalid due to anticipation, obviousness, or lack of a written description.2 Accordingly, Objections 9, 10, 12, 13, 14, and 15 are hereby OVERRULED. The Court also agrees with the Magistrate’s finding that laches, estoppel, and failure to mark are more appropriate for trial given that they relate to the issue of damages and liability is 1 The Court expresses no opinion as to whether Dr. Moore's reports and testimony would be admissible at trial. 2 The Court also overrules Alcon’s Objection 11, which objects to the Magistrate Judge’s finding that Nielson’s attorney was a proper custodian under Federal Rule of Civil Procedure 803(6) for the reasons stated by the Magistrate Judge. See F&R 20-21. in dispute.3 Accordingly, Objection 16 is OVERRULED. Overall, the Court finds that the Magistrate Judge correctly found that the parties’ summary judgment evidence raised a genuine issue of material fact regarding Alcon’s alleged infringement of Nielsen’s patent and Alcon’s defenses.4 It is therefore ORDERED that Defendants’ Objections are OVERRULED and the Findings and Recommendation of the United States Magistrate Judge are hereby ADOPTED. The parties’ cross motions for summary judgment are DENIED for the reasons stated in the Magistrate Judge’s Findings and Recommendation. SO ORDERED. Dated: September 30, 2011. _________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE 3 Alcon may move to bifurcate trial on the issues of liability and damage at a later time. 4 The Court notes that many of Alcon’s objections to the evidence relied upon by the Magistrate Judge in his various findings go more to the weight of this evidence rather than whether such evidence is admissible for summary judgment purposes. -3-
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