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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PACTOOL INTERNATIONAL, LTD.,

Plaintiff,

v.

KETT TOOL COMPANY, INC., et al.,

Defendants.

CASE NO. C06-5367 BHS

ORDER GRANTING 

DEFENDANT’S MOTION TO 

EXCLUDE AND DENYING 

PLAINTIFF’S MOTION TO 

STRIKE

This matter comes before the Court on Defendant Kett Tool Company, Inc.’s 

(“Kett”) motion to exclude the expert opinion of R. Lee Rawls (“Rawls”) (Dkt. 340) and 

Plaintiff PacTool International, Ltd.’s (“PacTool”) motion to strike (Dkt. 356). The Court 

has considered the pleadings filed in support of and in opposition to the motion and the 

remainder of the file and hereby grants the motion to exclude and denies the motion to 

strike for the reasons stated herein.

I. PROCEDURAL HISTORY

On June 29, 2006, PacTool filed a complaint against Kett alleging patent 

infringement. Dkt. 1. On April 8, 2010, PacTool filed a First Amended Complaint 

(“FAC”) against Defendants Kett and H. Rowe Hoffman alleging infringement of U.S. 

Case 3:06-cv-05367-BHS Document 377 Filed 08/22/12 Page 1 of 9
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ORDER - 2

Patent No. 5,993,303 and U.S. Patent No. 6,250,998, along with their respective 

Reexamination Certificates, 5,993,303 C1 and 6,250,998 C1 (“Patents”). Dkt. 63.

On October 27, 2011, the Court issued an order construing the claims of the 

Patents. Dkt. 263. Relevant to the instant motion, the Court construed certain terms in 

the Patents as “words of degree” and concluded that the Patents’ specifications disclosed 

sufficient information so that a person of ordinary skill in the art would be able to 

determine an objective standard for each word of degree. Id. at 9–11. 

On October 28, 2011, the Court denied PacTool’s motion for summary judgment 

of literal infringement because PacTool had failed to submit evidence on every element 

of its claim for literal infringement, namely there was no evidence that Kett’s tools fell 

within the “words of degree” limitations. Dkt. 265 at 3–4.

In February of 2012, PacTool produced a supplemental report of Rawls dated 

February 13, 2012. Dkt. 310–6 (“Report”). The Report provides as follows:

The following is the written report as to whether the terms 

“premature wear” and “premature failure” in the claims of United States 

Patent No. 6,250,998 C1 (the ’998 Patent) and U.S. Patent No. 5,993,303 

C1 (the ’303 patent) are met by the accused Kett products and Malco 

products identified by Kett.

Id. at 3.

On June 28, 2012, Kett filed the instant motion to exclude the Report and related 

testimony. Dkt. 340. On July 16, 2012, PacTool responded. Dkt. 344. On July 20, 

2012, Kett replied. Dkt. 354. On July 25, 2012, PacTool filed a surreply requesting that 

the Court strike certain material contained in and submitted with Kett’s response. Dkt. 

356. 

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ORDER - 3

On August 9, 2012, the Court, instead of granting PacTool’s motion to strike, 

requested that PacTool submit a response to Kett’s reply brief and evidence submitted in 

support thereof.1

 Dkt. 360. On August 16, 2012, PacTool responded. Dkt. 367.

II. FACTUAL BACKGROUND

The Patents claim a blade configuration that is set to “inhibit premature wear” 

and/or “premature failure” of the tool’s motor and/or drive assembly. See, e.g., ‘303 

Patent, col. 6, ll. 42–44, and ‘998 Patent, col. 8, ll. 17–18. Mr. Rawls provides that 

Simply put, the claim language means that shears that embody the 

claimed elements will wear more slowly and/or last longer than the prior art 

shears that do not embody the claimed elements.

Report at 6. Mr. Rawls states that PacTool undertook a study to “test the relative 

durability of like devices with and without the [blade] structure claimed in the ’998 and 

’303 patents.” Id. The study, however, was not designed to produce actual failure of any 

shear device.

2

 Instead, Mr. Rawls states that

this testing was designed to measure the relative stress on the tools, rather 

than to measure wear or count failures for comparison. My theory is that, 

everything else being equal, wear and failure rates are directly related to 

internal loads and stress on the components; the higher the stress, the higher 

the wear/failure rate will be. On average, the higher stressed tool will wear 

and fail more than the lower stressed tool.

Id. at 7.

 

1 Therefore, PacTool is not prejudiced by the additional evidence and the Court denies 

the motion to strike.

2 It seems that without evidence of an actual failure of a tool’s motor or drive assembly, 

the most the test can show is that the tools with the claimed blade configuration are easier to use 

after a certain amount of use.

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ORDER - 4

After significant testing on multiple shears, Mr. Rawls concluded that the patented 

gap spacing inhibited premature wear and failure. Specifically, Mr. Rawls concluded 

that:

The testing discussed above has demonstrated that the novel features 

disclosed and claimed in the ’998 and ’303 patents result in significantly 

less stress within the shear than the stress found in prior art devices (thick 

bladed tools). Less stress on electro/mechanical components will translate 

into fewer failures of those components. The reduced stress observed with 

both the thin bladed and second design tools compared to the thick bladed 

tools will result in fewer failures over time. . . .

From this testing I can conclude that the premature wear/failure 

claim terms are met by Kett fiber-cement first and second design shears in 

which the structure claimed in the ’998 and ’303 patents is embodied, but 

are not met in the prior art and Malco shears.

Id. at 22–23. 

III. DISCUSSION

Expert testimony is admissible if it is “scientific, technical, or other specialized 

knowledge” that “will help the trier of fact to understand the evidence or to determine a 

fact in issue,” and “the testimony is based on sufficient facts or data . . . the testimony is 

the product of reliable principles and methods; and the expert has reliably applied the 

principles and methods to the facts of the case.” Fed. R. Evid. 702. The court acts as a 

gatekeeper to ensure that expert testimony “is both relevant and reliable.” Avila v. Willits 

Envtl. Remediation Trust, 633 F.3d 828, 836 (9th Cir. 2011). The court may apply four 

nonexclusive factors to determine whether proffered expert opinion is developed by the 

scientific method or is “junk science:”

District court judges are to consider not only (1) whether the method has 

gained general acceptance in the relevant scientific community, but also (2) 

whether the method has been peer-reviewed, (3) whether the method “can 

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ORDER - 5

be (and has been) tested,” and (4) whether there is a “known or potential 

rate of error.” [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 

579, 594 (1993)] . . . . [T]he Daubert inquiry is flexible . . . . “One very 

significant fact” is whether the expert has “developed [his] opinions 

expressly for purposes of testifying,” since “a scientist’s normal workplace 

is the lab or the field, not the courtroom or the lawyer’s office.” [Daubert 

v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.), cert. 

denied, 516 U.S. 869 (1995) (“Daubert II”)]. That the expert failed to 

subject his method to peer-review and to develop his opinion outside the 

litigation is not dispositive, but if these guarantees of reliability are not 

satisfied, the expert “must explain precisely how [he] went about reaching 

[his] conclusions and point to some objective source . . . to show that [he 

has] followed the scientific method, as it is practiced by (at least) a 

recognized minority of scientists in [his] field.” Id.

Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 597 (9th Cir. 1996) (quoting 

Daubert II, 43 F.3d at 1317–1319. “[T]he test under Daubert is not the correctness of the 

expert’s conclusions but the soundness of his methodology.” Daubert II, 43 F.3d at 

1318. The gatekeeping function applies to all expert opinions, whether based on 

specialized, technical, or scientific knowledge. Kumho Tire Co.., Ltd. v. Carmichael, 526 

U.S. 137, 148–49 (1999). We “determine reliability in light of the particular facts and 

circumstances of the particular case.” Id. at 158.

In this case, Kett moves to exclude the Report on the basis that (1) the underlying 

data is unreliable (Dkt. 340 at 6–13) and (2) the methodology is not based on sound 

scientific principles (Dkt. 354 at 2–3). The Court will address each issue separately.

A. Reliability

First, Kett moves to exclude the Report because the tests and collection of data 

were outside of Rawls’ direction and control. Dkt. 340 at 7. However, “[a]n expert may 

base an opinion on facts or data in the case that the expert has been made aware of or 

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ORDER - 6

personally observed.” Fed. R. Evid. 703. According to the rules of evidence, Mr. Rawls 

does not need to personally observe the collection of data. Kett fails to provide any 

authority to the contrary. Therefore, Kett’s argument is without merit.

Next, Kett’s expert, Richard Klopp, attacks the accuracy of the Report’s 

underlying data and the manner in which the data was collected. See Dkt. 354, Exh. A, 

Declaration of Richard Klopp. For example, Mr. Klopp questions the testers’ failure to 

calibrate the measuring devices, the consistency of the tests performed on different data 

collection points, and the failure to account for any possible error in the data collected. 

These attacks, however, go to the weight of the evidence and not the admissibility of the 

evidence: “Vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means of attacking 

shaky but admissible evidence.” Daubert, 509 U.S. at 595. In other words, these issues 

are best left to the factfinder to weigh during the battle of the experts instead of the Court 

to weigh when considering the exclusion of an expert. Therefore, the Court denies Kett’s 

motion to exclude on these issues.

B. Methodology and Conclusions

Kett contends that “Mr. Rawls’ ‘test methodology’ was not based on basic laws of 

physics or scientifically valid principles and should be excluded . . . .” Dkt. 354 at 2. 

The underlying physics that Mr. Rawls basis his opinion on are relatively simple: higher

amperage correlates to increased power, assuming constant voltage, and higher force 

correlates to increased work, assuming some constants such mass, distance, speed and 

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ORDER - 7

friction.

3

 See Dkt. 365, Declaration of R. Lee Rawls, ¶ 4. The problem, however, occurs 

when Mr. Rawls makes the leap from data of increased power and work to the conclusion 

that these increases lead to premature wear/failure of the tool. On this point, the Supreme 

Court provides as follows:

[C]onclusions and methodology are not entirely distinct from one another. 

Trained experts commonly extrapolate from existing data. But nothing in 

either Daubert or the Federal Rules of Evidence requires a district court to 

admit opinion evidence that is connected to existing data only by the ipse 

dixit of the expert. A court may conclude that there is simply too great an 

analytical gap between the data and the opinion proffered. See Turpin v. 

Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir.), cert. 

denied, 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d 47 (1992). That is what 

the District Court did here, and we hold that it did not abuse its discretion in 

so doing.

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

In this case, PacTool has failed to show that the Report’s proffered conclusions are 

connected to the underlying data by anything other than the ipse dixit of Mr. Rawls. In 

his declaration, Mr. Rawls provides that “[a]ll else being equal, tools that experience 

higher loads/forces will, over time, tend to fail sooner or wear more, than tools that 

experience lower loads.” Dkt. 365, ¶ 4(d). Mr. Rawls declares that this principle is “selfevident.” Id. ¶ 26. The term “self-evident” conveys the idea that the principle is widely 

accepted and could be supported by some accepted literature on the subject. Although

PacTool did submit some scientific literature regarding stress and fatigue, it failed to 

connect the gap between the data and the proffered conclusions.

 

3 The assumptions regarding the constants as well as the tester’s ability to maintain these 

constants throughout the tests are other issues regarding the reliability of the underlying data. 

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ORDER - 8

In support of his conclusion, Mr. Rawls submitted two pages of a standard 

handbook for mechanical engineers. Dkt. 346 at 22–23 (MARKS STANDARD 

HANDBOOK FOR MECHANICAL ENGINEERS (9th ed. 1978) (“Handbook”)). The 

Handbook provides that fatigue is “generally understood as the gradual deterioration of a 

material when it is subjected to repeated loads.” Id. at 5-9. The Handbook describes how 

a specimen is tested with varying loads to produce failure of the specimen. Notably, the 

Handbook also provides that “[b]y choosing lower and lower stresses, a value may be 

obtained that will not produce failure, regardless of the number of applied cycles. This 

stress value is called the fatigue limit.” Id (emphasis in original). Thus, the fact that an 

object experiences higher stress does not show that it will fail sooner than if the object 

experienced lower stress, especially if the higher stress is below the fatigue limit of the 

object. The proffered literature does not support Mr. Rawls’ extrapolation from the 

underlying data.

More importantly, Mr. Rawls provides no support for his contention that a motor 

that consumes more amperage will fail sooner. Mr. Rawls opines that, at the final 

collection point, Kett’s motor will fail sooner because it is consuming between 

approximately .25 additional amps (see Report at 15) and 1 additional amp (see Report at 

12). The record is silent on this issue, and the Court cannot accept this opinion as true 

solely because Mr. Rawls says it is true.

Therefore the Court grants Kett’s motion to exclude the Report and related 

testimony of Mr. Rawls because “there is simply too great an analytical gap between the 

data and the opinion proffered.” Joiner, 522 U.S. at 146.

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ORDER - 9

BENJAMIN H. SETTLE

United States District Judge

IV. ORDER

Therefore, it is hereby ORDERED that Kett’s motion to exclude the expert 

opinion of Rawls (Dkt. 340) is GRANTED and PacTool’s motion to strike (Dkt. 356) is 

DENIED.

Dated this 22nd day of August, 2012.

A

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