IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD and 

SAMSUNG ELECTRONICS AMERICA, INC.,

Defendants.

Case No. 2:23-CV-00103-JRG-RSP

JURY TRIAL DEMANDED

SAMSUNG’S SUR-REPLY TO HEADWATER’S MOTION TO EXCLUDE OR STRIKE

CERTAIN REBUTTAL EXPERT OPINIONS OF PHILIP W. KLINE (DKT. 173)

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EXHIBIT INDEX AND NOTES

Exhibit Description

6 Excerpts from the Rebuttal Report of Dr. Itamar Simonson, dated October 14, 

2024

7 Excerpts from the Expert Report of M. Ray Perryman, Ph.D., dated October 14, 

2024

* Emphasis added unless otherwise noted. 

** Form objections are omitted from deposition transcript quotations unless otherwise noted. 

*** In this brief, “Headwater” refers to Plaintiff and its purported predecessors. 

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I. The Court Has Already Found Mr. Kline Qualified

Headwater moves to exclude Mr. Kline’s opinions criticizing Dr. Groehn’s survey, arguing 

that Mr. Kline lacks the necessary “education or experience” to offer such opinions. Mot. at 4. 

However, Headwater acknowledges that this Court previously rejected its “qualifications-based 

argument” in Headwater Research LLC v. Samsung Electronics Co., No. 2:22-cv-00422-JRGRSP, Dkt. No. 433 at 2-3 (E.D. Tex. Nov. 7, 2024). Reply at 1. Regardless, Headwater does not 

withdraw its motion or argument. Id.

Mr. Kline’s opinions fall squarely within the purview of his substantial academic and 

professional expertise. As this Court has observed, Headwater’s criticisms do not carry its burden 

to establish that Mr. Kline’s opinions will not be helpful to the fact-finder. Headwater Research 

LLC, at 3. At most, such criticisms go to weight, not admissibility. Id.

II. Mr. Kline, Dr. Simonson, and Dr. Perryman Offer Distinct, Non-Cumulative Opinions

Headwater moves to strike Mr. Kline’s opinions, asserting that his “survey-design opinions 

are [] duplicative and cumulative” of other expert’s opinions. Mot. at 4. This argument largely 

mirrors the one Headwater advanced in its motion to strike Mr. Kline’s opinion in Headwater 

Research LLC v. Samsung Electronics Co., No. 2:22-cv-00422-JRG-RSP. In that case, Headwater 

similarly challenged Mr. Kline’s opinions regarding decoy attributes, the definition of “battery 

life,” and brand and model names (though it argued those opinions were duplicative of those of a 

different damages expert, Ms. Sarah Butler). This Court rejected that argument, holding that “Mr. 

Kline’s and Ms. Butler’s opinions are not so duplicative as to warrant exclusion of either. The 

Court is satisfied that while the two experts comment on related facts, their opinions are focused 

on separate issues.” Headwater Research LLC, at 3. The Court should reach the same conclusion 

here. 

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Headwater claims such duplicative opinions could “lead to jury confusion and is a waste 

of trial time.” Reply at 4. Regarding the former, Headwater provides no explanation of why jurors 

would be confused if presented with Mr. Kline’s opinions alongside either or both Dr. Simonson 

and Dr. Perryman’s opinions. Headwater does not argue that Mr. Kline’s opinions contradict or 

are otherwise inconsistent with the opinions of any other expert because there is no inconsistency. 

There will not be any waste of trial time because, while Mr. Kline’s testimony may address similar 

facts as other experts, his opinions ultimately address different issues. 

For example, one basis for Headwater’s motion is that both Mr. Kline and Dr. Simonson 

critique Dr. Groehn’s use or omission of “control variables” or “decoy attributes.” Reply at 1-2. 

Headwater contends that their opinions are duplicative because both experts mention similar facts, 

specifically Dr. Groehn’s omission of camera performance, screen resolution, and 

speed/performance. Reply at 1-2. However, Headwater overlooks that the two experts ultimately 

offer separate and distinct opinions, each grounded in their respective areas of expertise. 

Dr. Simonson’s testimony aids the fact-finder in evaluating the impact that omission of 

critical attributes has on the survey respondents. Specifically, Dr. Simonson explains that conjoint 

surveys “must represent the options as seen by consumers in reality,” and that failing to do so 

leads to “focalism” or “focalism bias.” Ex. 6 (Simonson Rpt.) ¶ 38. This is significant because, 

as Dr. Simonson explained, the reliability of a survey hinges on its “ability to represent the essential 

characteristics of choices in reality, including capturing the key decision criteria.” Ex. 6 

(Simonson Rpt.) ¶ 59. Because Dr. Groehn’s survey excludes essential features that influence 

consumer purchasing decisions—such as camera performance, screen resolution, and 

speed/performance—it fails to reflect real-world conditions and thus lacks credibility. Ex. 6 

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(Simonson Rpt.) ¶ 43. Ultimately, Dr. Simonson’s opinion focuses on the credibility of the survey 

design itself. 

Mr. Kline’s opinions, by contrast, help the fact-finder understand the economic impact on

the resulting data by omitting key features from the survey. While Mr. Kline, like Dr. Simonson, 

acknowledges the “set of control variables is incomplete,” he goes further by explaining that 

because “these attributes do not vary in his survey (i.e., they are not controlled)” the regression 

analysis does not consider “the impact of variances in these attributes on the demand of 

smartphones.” Dkt. 173-3 (Kline Rpt.) ¶¶ 66-67. Mr. Kline further elaborates on how these 

variables impact the elasticity of demand for smartphones: “Dr. Groehn’s data do not show how 

changes in these attributes (e.g., camera resolution) affect how many smartphones people buy.” 

Id. In summary, while Dr. Simonson’s opinions address the credibility of the survey data itself, 

Mr. Kline’s opinions focus on the economic analysis derived from the survey. 

Headwater’s other examples fail for largely the same reason—they merely highlight similar 

facts criticized by multiple experts while ignoring the distinct opinions and conclusions each expert 

offers. For instance, Headwater notes that Dr. Simonson, Dr. Perryman, and Mr. Kline all 

comment on how “battery life” is defined in Dr. Groehn’s survey. Reply at 2. However, each 

expert addresses this issue to support different ultimate conclusions. Dr. Simonson, for example, 

focuses on how the ambiguity affects the survey respondents. He explains that respondents 

mentally substitute “standard,” “5%,” and “10%” with “low,” “medium,” and “high.” Ex. 6 

(Simonson Rpt.) ¶ 29. This criticism ultimately challenges the reliability of the survey’s design, 

as Dr. Simonson explains that regardless of the specific numbers presented, survey respondents 

are most likely to value the middle or “compromise” option. Ex. 6 (Simonson Rpt.) ¶ 31-33. Once 

again, Dr. Simonson’s conclusions are narrowly focused on the credibility of the survey design 

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itself (and are not challenged at all by Headwater). Mr. Kline, by contrast, focuses on the economic 

implications of Dr. Groehn’s failures. Specifically, he addresses Dr. Groehn’s failure to “quantify 

the economic value of ‘battery life’ to Samsung.” Dkt. 173-3 (Kline Rpt.) ¶ 91. Mr. Kline’s 

criticisms of Dr. Groehn’s survey illustrate that the resulting data output from the survey are not 

economically reliable to reflect the claimed economic benefit. For example, Mr. Kline notes that 

Dr. Groehn failed to test accused smartphone models at lower price ranges, yet still attempts to 

calculate alleged incremental benefits across all models and price points. Dkt. 173-3 (Kline Rpt.) 

¶ 95. In contrast, Dr. Simonson’s criticism illustrates that the survey itself was not conducted in a 

reliable or proper way. Mr. Kline’s opinions are distinct from Dr. Simonson’s and are not 

duplicative. Instead, they provide additional, valuable perspectives that will aid the fact-finder.

As noted in Samsung’s response, Dr. Perryman notes Dr. Groehn’s error in defining 

“battery life” for a different purpose: he relies on Dr. Simonson’s survey design critiques and Mr. 

Kline’s economic analysis to rebut the reasonable royalty calculated by Headwater’s expert, Mr. 

Dell, under the Georgia-Pacific factors. Ex. 7 (Perryman Rpt.) ¶¶ 10, 293. Dr. Perryman does not 

intend to offer at trial any opinions duplicative of those of Mr. Kline or Dr. Simonson. 

As a third example, Headwater notes the experts’ discussion of how models and brands are 

presented to survey respondents. Once again, Dr. Simonson focusses on impact of these choices 

on the survey respondents. For instance, he examines how, unlike in real-world scenarios, survey 

respondents are limited to selecting from only three phones: the Samsung Galaxy S24, Motorola

Edge 2023, and the Apple iPhone 15. Ex. 6 (Simonson Rpt.) ¶ 64. Dr. Simonson further discusses 

how presenting these particular devices in Dr. Groehn’s survey compounds the ambiguity in the 

definition of “battery life,” given the significant differences in battery performance among these 

devices (e.g., the Motorola Edge offers 36 hours, while the Apple iPhone 15 provides only 20 

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hours). Id. Mr. Kline, in contrast, focuses on the economic implications of restricting the survey 

to three brand/model options. For example, he explains that this limitation in Dr. Groehn’s data 

fails to consider the “wide range of price tiers” offered by these brands. Dkt. 173-3 (Kline Rpt.) 

¶ 95. As before, Mr. Kline’s ultimate opinions pertain to the economic analysis of Dr. Groehn’s 

data, while Dr. Simonson examines the impact of Dr. Groehn’s design parameters on survey 

respondents. 

In its reply, Headwater cites Hearing Components, Inc. v. Shure, Inc., No. 9:07-cv-104, 

2008 WL 557824 (E.D. Tex. Dec. 1, 2008) to argue that any overlap between expert reports should 

be excluded under Rule 403. However, the reasoning in Hearing Components is not applicable 

here. In that case, the expert admitted he had not conducted an in-depth analysis of the patents 

because the validity expert had done so, but nonetheless offered an opinion on the state of the art 

at the time of the invention. Id. at *2. The court excluded the testimony not merely because it was 

cumulative, but because it had little to no probative value. Id. at *1. Here, by contrast, each expert 

has conducted a thorough review of Dr. Groehn’s survey and subsequent analysis. Crucially, each 

expert offers distinct opinions based on their unique areas of expertise informed by their own 

analysis, making their respective testimonies probative of different issues and valuable to the factfinder.

III.CONCLUSION

For the foregoing reasons, Samsung respectfully submits the Court should deny 

Headwater’s motion to exclude or strike portions of Mr. Kline’s expert opinions.

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Dated: November 20, 2024 Respectfully submitted,

By: /s/ Thomas H. Reger II

Ruffin B. Cordell

TX Bar No. 04820550

Michael J. McKeon

DC Bar No. 459780

mckeon@fr.com

Jared Hartzman 

DC Bar No. 1034255

hartzman@fr.com

FISH & RICHARDSON P.C.

1000 Maine Avenue, SW, Ste 1000

Washington, D.C. 20024

Telephone: (202) 783-5070

Facsimile: (202) 783-2331

Thad C. Kodish

GA Bar No. 427603

tkodish@fr.com

Benjamin K. Thompson

GA Bar No. 633211 

bthompson@fr.com

Jonathan B. Bright

GA Bar No. 256953 

jbright@fr.com

Christopher O. Green

GA Bar No. 037617

cgreen@fr.com

Noah C. Graubart

GA Bar No. 141862

graubart@fr.com

Sara C. Fish

GA Bar No. 873853

sfish@fr.com

Katherine H. Reardon

NY Bar No. 5196910

reardon@fr.com

Nicholas A. Gallo 

GA Bar No. 546590

gallo@fr.com

Vivian C. Keller (pro hac vice)

GA Bar No. 651500

keller@fr.com

FISH & RICHARDSON P.C.

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1180 Peachtree St. NE, Fl. 21

Atlanta, GA 30309

Telephone: (404) 892-5005

Facsimile: (404) 892-5002

Leonard E. Davis

TX Bar No. 05521600

ldavis@fr.com

Andria Rae Crisler

TX Bar No. 24093792

crisler@fr.com

Thomas H. Reger II

Texas Bar No. 24032992

reger@fr.com

FISH & RICHARDSON P.C.

1717 Main Street, Suite 5000

Dallas, TX 75201

Telephone: (214)747-5070

Facsimile: (214) 747-2091

John-Paul R. Fryckman (pro hac vice)

CA Bar No. 317591

John W. Thornburgh

CA Bar No. 154627

thornburgh@fr.com

FISH & RICHARDSON P.C.

12860 El Camino Real, Ste. 400

San Diego, CA 92130

Telephone: (858) 678-5070

Facsimile: (858) 678-5099

Katherine D. Prescott (pro hac vice)

CA Bar No. 215496

prescott@fr.com

FISH & RICHARDSON P.C.

500 Arguello Street

Suite 400

Redwood City, CA 94063

Telephone: (650) 839-5180

Facsimile: (650) 839-5071

Kyle J. Fleming (pro hac vice)

NY Bar No. 5855499

kfleming@fr.com

FISH & RICHARDSON P.C.

7 Times Square, 20th Floor,

New York, NY 10036

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Telephone: (212) 765-5070

Facsimile: (212) 258-2291

Melissa R. Smith

State Bar No. 24001351

Melissa@gillamsmithlaw.com 

GILLAM & SMITH, LLP

303 South Washington Avenue

Marshall, Texas 75670

Telephone: (903) 934-8450

Facsimile: (903) 934-9257

Andrew Thompson (“Tom”) Gorham

State Bar No. 24012715

tom@gillamsmithlaw.com

GILLAM & SMITH, LLP

102 N. College, Suite 800

Tyler, Texas 75702

Telephone: (903) 934-8450

Facsimile: (903) 934-9257

Michael E. Jones 

State Bar No. 10929400 

mikejones@potterminton.com 

Shaun W. Hassett 

State Bar No. 24074372 

shaunhassett@potterminton.com 

POTTER MINTON, P.C. 

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Tyler, Texas 75702 

Telephone: (903) 597-8311 

Facsimile: (903) 593-0846

Lance Lin Yang

CA. Bar No. 260705

Lanceyang@quinnemanuel.com

Kevin (Gyushik) Jang

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kevinjang@quinnemanuel.com

Sean S. Pak

CA Bar No. 219032

seanpak@quinnemanuel.com

QUINN EMANUEL URQUHART &

SULLIVAN, LLP

50 California Street, 22nd Floor

San Francisco, CA 94111

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Telephone: (415) 875-6600

Brady Huynh (admitted pro hac vice)

CA Bar No. 339441

bradyhuynh@quinnemanuel.com

QUINN EMANUEL URQUHART &

SULLIVAN, LLP

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Jon Bentley Hyland

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Grant K. Schmidt

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HILGERS GRABEN PLLC

7859 Walnut Hill Lane, Suite 335

Dallas, Texas 75230

Telephone: (972) 645-3097

ATTORNEYS FOR DEFENDANTS

SAMSUNG ELECTRONICS CO., LTD. AND

SAMSUNG ELECTRONICS AMERICA, INC.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was filed 

electronically in compliance with Local Rule CV-5 on November 20, 2024. As of this date, all 

counsel of record had consented to electronic service and are being served with a copy of this 

document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).

/s/ Thomas H. Reger II

Thomas H. Reger II

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