This case was a patent dispute about electronic drum kits. The patents at issue involved technology that allowed electronic drums and cymbals to mimic the material and sensation of the drums and cymbals on an acoustic drum kit. The Plaintiff, inMusic Brands, Inc. (“inMusic”), sued the Defendant, Roland Corporation (“Roland”), alleging infringement of three of its drum and cymbal patents: the ‘827 Patent for an Electronic Percussion Instrument with Enhanced Playing Area; the ‘758 Patent for an Electronic Hi-Hat Cymbal Controller; and the ‘724 Patent for a Removable Electronic Drumhead for an Acoustic Drum. inMusic claimed that Roland’s PD-140DS V-Pad infringed the ‘827 Patent; that its VH-13-MG Hi-Hat infringed the ‘758 Patent; and that its KD-A22 Kick Drum Converter infringed the ‘724 Patent.
inMusic also filed a motion to exclude the non-infringement opinion of Roland’s expert witness, Dr. Paul D. Lehrman.
Plaintiff argued that Roland’s lawyers had prepared Lehrman’s Non-infringement Expert Report. Lehrman had merely “proofread” and signed what the lawyers had ghost-written for him. A lawyer-prepared expert report was improper under Daubert and warranted exclusion. As a result, Lehrman’s non-infringement opinion evidence was unreliable, unhelpful to the trier of fact, and improperly disclosed.
Music Engineering Expert Witness
Paul D. Lehrman has been a Member of the Music faculty at Tufts University since 2000. He has been teaching music technology at the college level since 1987. He was responsible for designing and building iMac-based music/multimedia lab with 12 student stations in Tufts University. He has authored six books and over 600 articles on music and audio technology.
Discussion by the Court
The Plaintiff’s primary argument required the Court to identify the line between legitimate attorney assistance in drafting an expert report and improper attorney preparation of an expert report. The starting point was Rule 26(a)(2)(B), which required a written expert report “prepared and signed by the witness.”
The Court, after reviewing the expert report and Lehrman’s deposition testimony, held that, in forming his opinions, he had participated in the process far more than just reading and signing the expert report. Moreover, Lehrman testified (as also reflected in the report) that he personally conducted testing in his lab regarding certain of the accused products, was involved in designing those tests, and examined and/or disassembled certain of the products in issue. While it would have been preferable if Lehrman had had more direct involvement in the final drafting process, this was not the case of an expert simply rubber-stamping a report ghostwritten by counsel as suggested by Plaintiff. Consequently, the Court noted Lehrman’s involvement in the process complied with the dictates of Rule 26(a)(2)(B). Moreover, Plaintiff did not make a sufficient showing to warrant exclusion.
Held
The Court denied inMusic’s motion to exclude the non-infringement opinion of Roland’s expert witness, Dr. Paul Lehrman because Roland met the dictates of both Rule 26 and Rule 702.
Key Takeaway:
The Court deemed Paul Lehrman’s testimony admissible because his participation in the preparation of his expert report was adequate. He personally conducted testing in his lab regarding certain of the accused products. Lehrman designed those tests and examined and/or disassembled certain of the products in issue.
Case Details:
| Case Caption: | Inmusic Brands, Inc. V. Roland Corporation |
| Docket Number: | 1:17cv10 |
| Court: | United States District Court for the District of Rhode Island |
| Order Date: | March 29, 2024 |
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