Preview
FILED
3/10/2023 3:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
CAUSE NO. DC-19-17946
RETRACTABLE IN THE DISTRICT COURT
TECHNOLOGIES, INC.
Plaintiff,
Vv. 44TH JUDICIAL DISTRICT
LOCKE LORD LLP and
ROY HARDIN
DALLAS COUNTY, TEXAS
Defendants
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS
Defendants Locke Lord LLP and Roy Hardin (“Defendants” or “Locke Lord”) file this
Objection to and Motion to Strike Opinion Testimony of Michele Larios, a witness designated as
an expert by Plaintiff Retractable Technologies, Inc., (“RTI”), as follows:
I SUMMARY
This is a legal malpractice case. For its proof of causation and damages, RTI relies entirely
on the opinion of its own general counsel, Michele Larios. By this Motion, Locke Lord objects to
Ms. Larios’s proposed opinion testimony on multiple grounds and moves to exclude Ms. Larios
from offering her opinion at trial.
RTI’s Claim. This case relates to Locke Lord’s representation of RTI in complex litigation
(the “Underlying Litigation”) against Becton Dickinson (“BD”). The Underlying Litigation
included claims of patent infringement, antitrust, and violations of the Lanham Act. In this
malpractice case, RTI’s primary claim is that Locke Lord failed to tell RTI that the Fifth Circuit
had already ruled out one of RTI multiple antitrust arguments. Specifically, RTI contends that prior
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Fifth Circuit authority precluded RTI’s claim that BD’s patent infringement was anticompetitive
conduct that helped support an antitrust claim.!
RTI’s Causation and Damages Theory. In fact, Locke Lord advised RTI about the two
prior Fifth Circuit cases three years before the trial of RTI’s antitrust claim against BD. But RTI
alleges Locke Lord should have advised RTI about those cases earlier. RTI claims that if Locke
Lord had advised RTI about the two prior Fifth Circuit cases before RTI filed suit, RTI would not
have asserted the patent infringement portion of the Underlying Litigation. Even though RTI won
the patent infringement claim and collected approximately $7.7 million from BD. Nonetheless,
RTI claims it was damaged by filing the patent infringement claim. RTI contends the fees and
expenses “attributable” to the patent infringement claim exceeded the $7.7 million recovered from
BD.
Locke Lord’s Position. At the outset, it is dispositive of this matter that RTI’s causation
and damages claim—unsupported by proof that different representation would have resulted in a
better outcome—is legally impermissible in a legal malpractice case.* That alone should decide
the issue. But even if RTI’s causation and damages claim were legally permissible, RTI cannot
' Locke Lord disagrees with RTI’s characterization of the previous Fifth Circuit authority and has asked
this Court to decide this pure question of law. See Locke Lord’s Motion for Pretrial Conference pursuant
to Rule 166 and for Rule 166(g) Determination of Question of Law, filed February 27, 2023.
? In a legal malpractice claim arising from litigation, the plaintiff must always prove that it would have
achieved a better result but for the alleged malpractice. Rogers v. Zanetti, 518 S.W.3d 394, 401 (Tex. 2017)
(“When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the client would
have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper
standard of care”). RTI concedes that it has no such proof. Although a plaintiff may seek to recover
attorneys’ fees incurred to fix a problem caused by legal malpractice, RTI makes no such claim here. RTI’s
theory of causation and damages is a thinly disguised claim for fee disgorgement, which is not available in
a professional negligence case. See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416,
433 (Tex. App.—Austin 2009, no pet.) (claim for a return of fees “amounts to an end-run around the breach
and causation elements of a professional-negligence claim”); Ochoa-Bunsow v. Soto, 587 S.W.3d 431, 442
(Tex. App.—EI Paso 2019, pet. denied) (dismissal of fee forfeiture claim was harmless error because breach
of fiduciary duty claim was really fractured negligence claim).
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prove that claim simply by estimating the actual fees and expenses attributable to the patent
infringement claim—the Texas Supreme Court has made clear that proof of “but for” causation
requires an altogether different analysis.’ And even if RTI could overcome those two hurdles, the
actual fees and expenses attributable to the patent infringement claim do not exceed the $7.7
million RTI recovered from BD on the patent infringement claim.*
RTI has proffered this so-called “causation and damage” opinion testimony through
Michele Larios, RTI’s own general counsel. Those self-serving “opinions” are speculative,
conclusory, do not satisfy even the most minimal requirements for reliability, and should be barred
in their entirety.
Opinion Testimony at Issue. RTI has designated Michele Larios to offer her opinion as
to the amount of fees and expenses “attributable” to the patent infringement cause of action. With
no reliable methodology or credentials to do so, Ms. Larios contends that the attributable portion
of fees was $14,244,705, and the attributable amount of expenses was $3,884,354, for a total of
$18,129,059. After crediting the $7,724,826 recovered under the patent infringement judgment,
Ms. Larios concludes that RTI was damaged in the amount of $10,404,233.5
Summary of Objections. Ms. Larios’s testimony is improper and should be excluded. As
shown below:
3 See discussion at pages 18-19, infra.
4 Ms. Larios’s calculation is based on irrational and unreliable methodology and Ms. Larios ignores that
Locke Lord was on a contingent fee arrangement starting in 2010. See discussion at pages 16-17, infra.
5 Ms. Larios contends in the alternative that the attributable portion of fees was $8 million and that RTI’s
total damages were $4,159,528. This alternative opinion fails for the same reasons as the $10,404,233
opinion. Additionally, Ms. Larios’s $8 million fee estimate—based solely on an off-the-cuff comment from
Roy Hardin—lacks a reliable foundation and is conclusory.
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1 Ms. Larios is not qualified to offer an opinion on the amount of fees and expenses
attributable to the patent infringement cause of action. Ms. Larios admits she is neither an expert
in patent or antitrust litigation and has never recorded any of her time during her long tenure at
RTL Ms. Larios has no expertise that qualifies her to apportion a law firm’s fees to different causes
of action asserted by the law firm in a single lawsuit.
2 Ms. Larios’s proposed testimony is not reliable because the methodology she
employs to support her opinion is irrational, illogical, and contrary to fact, and because there is too
great an analytical gap between the data and her opinion. Among other things, Ms. Larios allocates
to the patent infringement claim all billed time of lawyers who are experienced in patent
infringement law, regardless of the services they actually provided in the case. This includes all of
the time of the lead trial counsel in the antitrust trial. In other words, she allocated billed time to
the patent infringement case merely because the lawyer who billed it was experienced in patent
law and not based on the actual work done.
3 As a result, Ms. Larios’s proposed opinion is inadmissible because it is conclusory
and speculative and is no more than her subjective belief. Ms. Larios offers no explanation for
how she reaches her opinion; she just states her conclusion.
4 Ms. Larios’s proposed testimony is irrelevant and misleading. Even if RTI were
legally permitted to claim fee disgorgement in a negligence action, Ms. Larios’s opinion would
not match RTI’s burden of proof. To meet its burden, RTI would be required to provide a
comparison of (a) the total amount of fees and expenses that were actually incurred in the
Underlying Litigation, and (b) the hypothetical amount that would have been incurred if a case
had been filed with antitrust and Lanham Act claims alone (a “patent-free case”). But Ms. Larios
only opines about the amount of fees attributable to the patent portion of Underlying Litigation (as
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OPINION TESTIMONY OF MICHELE LARIOS Page 4 of 21
it actually happened), which is entirely different from the amount that would have been incurred
in a hypothetical, patent-free case.
For one thing, if RTI had brought a patent-free case Locke Lord would never have agreed
to a contingent/flat fee agreement. (Locke Lord only agreed to a contingent/flat fee agreement in
the Underlying Litigation after it had won the patent infringement trial and had the patent
infringement judgment in hand.) RTI’s damages theory requires a determination of the full cost
(without a flat fee cap) of a patent-free antitrust/Lanham Act case, less the $7.7 million RTI
received from its patent win. Ms. Larios’s proposed testimony does not address the hypothetical
patent-free case and is therefore irrelevant and misleading.
5 There is a grave danger that if Ms. Larios is allowed to identify herself as a lawyer
and offer her opinion on the amount of fees and expenses attributable to RTI’s patent infringement
claims, a lay jury will assign undue weight to her testimony. Allowing Ms. Larios to provide
unqualified, unreliable, conclusory, and irrelevant opinion testimony will unduly prejudice Locke
Lord.
Relief Requested. The Court should exclude any opinion testimony from Ms. Larios
regarding the amount of fees and expenses attributable to the patent infringement claims in the
Underlying Litigation.
I. FACTS
A Background—the Underlying Litigation.
The Underlying Litigation pertained to retractable safety syringes, RTI’s main product.
RTI alleged that BD’s illegal conduct prevented RTI from competing fairly for sales of safety
syringes in the hospital market.
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Before filing the Underlying Litigation, Locke Lord had represented RTI in another
antitrust claim against BD. That claim, filed in the Eastern District of Texas, settled in 2004 for a
payment of $100,000,000.00. Yet only two years later, RTI sought to bring another lawsuit against
BD.
Locke Lord filed the Underlying Litigation for RTI in June 2007. RTI alleged traditional
violations of antitrust, unfair competition, and patent infringement law. For example, RTI alleged
that BD—the world’s leading supplier of conventional disposable syringes—used restrictive
contracts that illegally induced customers to buy BD’s safety syringes rather than RTI’s
(contractual antitrust claims). Later in the litigation, RTI also alleged that BD had made false
representations in the marketplace about RTI’s and BD’s competing products (false advertising
claims under the Lanham Act). And RTI alleged that BD’s copycat versions of retractable syringes
violated RTI’s patents (patent infringement claims).
RTI also alleged that, in addition to violating the patent laws, BD’s sales of copycat
syringes supported RTI’s antitrust claim. RTI alleged that (a) BD’s infringing copycat syringes
were of poor quality, and (b) BD knowingly left the infringing syringes on the market not to make
a profit, but to drive down demand for RTI’s patented retracting syringes. By tainting the market
for RTI’s innovative retracting syringes with an infringing product, BD sought to maintain its
monopoly in the traditional syringe market by delaying the market’s adoption of RTI’s innovative
retracting syringes until after RTI’s patents expired, ultimately driving RTI out of business. RTI
therefore alleged that BD’s patent infringement, when taken together with BD’s exclusive dealing
contracts and unfair competition, satisfied the “anticompetitive conduct” element of an antitrust
claim.
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B. Locke Lord’s multiple victories.
After the case was filed in 2007, the court severed the patent infringement case and
temporarily stayed the antitrust case. Locke Lord then won multiple victories for RTI.
First, Locke Lord won a multimillion-dollar patent infringement judgment against
BD, including damages and an injunction. RTI ultimately collected the judgment in full
(approximately $7.7 million). Ironically, this is the claim that RTI now claims it would not
have pursued.
. Second, in the antitrust suit, Locke Lord successfully defeated multiple challenges
to the notion that BD’s patent infringement could support the anticompetitive conduct
element of an antitrust claim. Both the Chief District Judge of the Eastern District of Texas
and the United States Magistrate Judge wrote detailed opinions holding that RTI was
entitled to assert the “patent infringement as anticompetitive conduct” theory due to the
unique facts of the case.° These opinions expressly rejected BD’s argument (and RTI’s
current claim) that the theory was foreclosed by prior Fifth Circuit authority.
e Third, Locke Lord won a jury verdict for $113 million in the antitrust case.
e Fourth, before entering judgment, the district court again expressly rejected RTI’s
argument that the two prior Fifth Circuit cases held that patent infringement could not
support the exclusionary conduct element of an attempted monopolization claim.
e Fifth, the district court entered judgment for RTI in the amount of $352 million and
imposed immediate injunctive relief.
° See the opinions of United States District Judge Leonard Davis and United States Magistrate Judge Roy
S. Payne, Retractable Techs., Inc. v. Becton, Dickinson & Co., No. 2:08-CV-16, 2013 WL 4806905 (E.D.
Tex. Sept. 9, 2013).
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Unfortunately, as sometimes happens, two years later the Fifth Circuit reversed the
judgment. The Fifth Circuit’s opinion cited to the two prior Fifth Circuit cases’ in discussing the
use of patent infringement to prove an antitrust violation.
C. RTI’s malpractice claim.
In this malpractice case, RTI alleges that the two older Fifth Circuit cases held that patent
infringement may never be used to support an antitrust claim. This theory (using patent
infringement conduct to support a claim of monopolization) was only one of several theories used
by Locke Lord to advocate RTI’s antitrust claim. Throughout the litigation, Locke Lord maintained
that the two Fifth Circuit cases did not foreclose the specific theory advocated by Locke Lord;
namely that the defendant infringed on RTI’s patent not to steal its technology but as a means of
keeping RTI out of the market.’ For ten years of active litigation, the theory advocated by Locke
Lord prevailed. Although Locke Lord advised RTI about the two opinions three years before trial,
RTI complains now that Locke Lord should have done so even earlier and, notwithstanding the
multiple district court opinions expressly agreeing with Locke Lord’s position, should have
predicted the future Fifth Circuit ruling.
As to the elements of proximate cause and damages, RTI concedes it does not intend to
prove that the outcome of the litigation would have been more favorable under any circumstances,
including if Locke Lord had advised RTI earlier about the two Fifth Circuit cases. Instead, RTI
contends that if it had known of the two cases it would never have included a patent infringement
7 Kinnear-Weed Corp. v. Humble Oil & Ref. Co., 214 F.2d 891, 893 (5th Cir. 1954) (“Kinnear-Weed”);
Northwest Power Prods., Inc. v. Omark Indus., Inc., 576 F.2d 83 (5th Cir. 1978) (“Northwest Power
Products’).
8 Locke Lord argued that the two opinions merely spoke to the requirement of proving public injury (e.g.,
that the conduct complained of injured not just the individual plaintiff but the public) but did not preclude
the use of a defendant’s patent infringement to prove the separate element of anticompetitive conduct.
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claim in the Underlying Litigation. RTI claims that it would have been better off if it had not
included the patent infringement claim, because, according to RTI, the fees and expenses it claims
were attributable to the patent infringement claim turned out to be greater than the $7.7 million
recovery.
D. Michele Larios’s proposed expert testimony.
On December 16, 2022, RTI designated Michele Larios as an expert and fact opinion
witness. Ms. Larios has been the general counsel of RTI for many years, including during the
Underlying Litigation. RTI submitted an expert report of Ms. Larios along with the designation.°
As relevant to this Motion, the Larios Report describes Ms. Larios’s proposed opinions as to the
amount of fees and expenses directly attributable to RTI’s patent infringement claim against BD:
18. Based on my review of the time entries, invoices, the Affidavit of Roy Hardin
submitted in the Underlying Litigation, and/or the bills provided by Defendants to
RTI, from midmid-2006 [sic] to September 2013, RTI paid Defendants
$14,244,705.00 in attorneys’ fees that were directly attributable to the patent
infringement claims against BD.
19. In calculating this amount, I reviewed the time entries, invoices, and/or bills
provided by Defendants. During my review, I identified and highlighted all time
entries that were related to the patent infringement portion of the Underlying
Litigation (see RTI 168737-170247). Additionally, I identified the time entries for
the attorneys from Locke Lord that were intellectual property attorneys (i.e., patent
attorneys). I then identified all the time spent on the Underlying Litigation by
Hardin (RTI 170248). I identified all the time spent by Hardin because he was only
involved in the Underlying Litigation because of his patent experience, and he
would not have been involved with the Underlying Litigation but for the patent
infringement component of the case. As such, all of Hardin’s time billed on the
Underlying Litigation was directly related to the patent infringement portion of the
case.
20. I then calculated the total amount of money that was attributable to the patent
infringement portion of the case by adding up the dollar value for the time entries
that were directly related to the patent infringement portion of the case, including
° The Larios Report is attached as Exhibit A.
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all the time entries for the intellectual property attorneys, and all the time spent by
Hardin on the Underlying Litigation. This amount totaled up to $14,244,705.00.
21. Additionally, based on my review of the payments that were made by RTI from
January 2007 to September 2013, RTI paid $3,884,354.00 in third-party litigation
expenses that were directly attributable to the patent infringement claims against
BD. Specifically, I identified the expenses that were directly attributable to the
patent infringement portion of the Underlying litigation. The expenses that were
directly attributable to the patent infringement portion of the case are highlighted
on RTI 168734. One of the expenses related to document production (Merrill
Corporation) and I conservatively estimated that approximately 90% of this
expense was directly attributable to the patent infringement portion of the case.
Primarily, I estimated this amount because the antitrust portion of the case was
stayed during the time that this cost was incurred. Furthermore, most of the
highlighted expenses occurred when the antitrust portion of the case was stayed.
22. Based on my review of the time entries and/or bills provided by Defendants to
RTI and my review of the payments made by RTI to Defendants, from January
2007 to September 2013, RTI spent a total of $18,129,059.00 in attorneys’ fees and
third-party litigation expenses that were directly attributable to the patent
infringement claims that were asserted by RTI against BD only to recover
$7,724,826.00 in connection with the patent infringement claims.
29. On September 6, 2007, BD filed a retaliatory patent infringement suit against
RTI that they had not filed prior to the filing of the Underlying Litigation. As a
result of BD’s patent infringement suit against RTI, RTI incurred $542,902.32 in
attorneys’ fees and $152,743.59 in third-party litigation expenses that would not
have been incurred if Defendants had disclosed the 1954 and 1978 cases from the
Fifth Circuit.
30. In the alternative, it is my understanding that Defendants claim that less of their
attorneys’ fees were directly attributable to the patent infringement portion of the
Underlying Litigation than $14,244,705.00; however, Hardin represented to me
that Locke Lord had been paid $8,000,000 dollars in attorneys’ fees by RTI for the
patent infringement portion of the Underlying Litigation (see RTI 137311). As
described above, I do not agree with Hardin’s total based on my review of the time
entries; however, at a minimum, even based on Hardin’s calculations, RTI spent
$11,884,354 ($8 million in attorneys’ fees plus $3,884,354.00 in third-party
litigation expenses that were directly attributable to the patent infringement claims)
only to recover $7,724,826.00. Accordingly, at a minimum (according to Hardin’s
calculations), as a direct and proximate result of the Defendants’ actions and/or
incorrect legal advice, RTI lost at least $4,159,528.00 in attorneys’ fees and third-
party litigation expenses pursuing the patent infringement claims against BD.
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Whether considered to be expert witness or lay witness testimony, Ms. Larios’s opinions
are improper and inadmissible and should not be allowed into evidence, for the reasons discussed
below.
E. Under the parties’ modified fee agreement, lawyer time entries had no effect
on the amount RTI paid Locke Lord.
To understand the flawed and unreliable nature of Ms. Larios’s opinion, it is important to
understand the parties’ fee agreements and billing format.
RTI’s original fee agreement with Locke Lord (2007) called for a discounted hourly rate,
with RTI paying all expenses. There was a single client-matter number set up for the Underlying
Litigation, and all attorney time in the Underlying Litigation was recorded to that matter, whether
the work was attributable to RTI’s antitrust, Lanham Act, or patent infringement claims.'° For
amounts incurred under the original hourly fee agreement, any attempt to determine the amount of
fees attributable to the patent infringement cause of action would require review and classification
of thousands of individual time entries.
But after three years, lawyer time entries no longer affected the amount of RTI’s
payments. In May 2010, after Locke Lord had won the patent infringement judgment for RTI,
RTI asked to modify the original hourly fee agreement. Locke Lord agreed, and the fee agreement
was changed to a contingent/flat payment arrangement. Under the May 2010 fee agreement, Locke
Lord would no longer charge hourly fees on the Underlying Litigation and would pay all expenses
in the Underlying Litigation, including millions of dollars in anticipated expert fees. In return, RTI
gave Locke Lord a 30% contingent interest in the antitrust portion of the Underlying Litigation
and agreed to pay a flat amount of $2 million per year. As it turned out, after May 2010, Locke
'© This was one exception—a separate matter number was set up for a patent infringement claim that BD
brought against RTI.
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Lord invested over $43 million in time and out of pocket expenses in the Underlying Litigation,
while RTI only paid Locke Lord $14.7 million.
Locke Lord lawyers continued to record time after May 2010, and Locke Lord periodically
provided those time records to RTI in the form of informational statements. But after May 2010
RTI never paid Locke Lord based on recorded time. Because there is no relationship between
Locke Lord’s post-May 2010 time entries and the amount RTI paid Locke Lord, those time entries
may not be used in determining the amount of actual fees attributable to the patent infringement
portion of the case.
Til. ARGUMENT AND AUTHORITIES
A Requirements for expert opinion testimony.
Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by
knowledge, skill, experience, training, or education to testify on scientific, technical, or other
specialized subjects if the testimony would assist the trier of fact in understanding the evidence or
determining a fact issue. The party offering the expert's testimony bears the burden to prove that
the witness is qualified. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.
1998). The offering party must demonstrate that the witness possesses special knowledge as to the
very matter on which he proposes to give an opinion. Jd.
Expert testimony must be relevant and based on a reliable foundation. Guadalupe—Blanco
River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002). In determining reliability, the trial court
should evaluate the methods, analysis, and principles relied on by the expert in reaching the
opinion and ensure that the opinion comports with applicable professional standards and has a
reliable basis in the knowledge and experience of the discipline. Gammill, 972 S.W.2d at 725-26.
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The reliability requirement focuses on the principles, research, and methodology underlying an
expert's conclusions. Kerr—McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004).
Expert testimony is unreliable if there is too great an analytical gap between the data and
the opinion proffered. Gammill, 972 S.W.2d at 726. Further, expert testimony is unreliable if it is
no more than subjective belief or unsupported speculation. Kerr-McGee Corp., 133 S.W.3d at
254. Opinion testimony that is conclusory or speculative is not relevant evidence because it does
not tend to make the existence of a material fact more probable or less probable. General Motors
Corp. v. Iracheta, 161 S.W.3d 462, 470-71 (Tex. 2005). The admission of expert testimony that
does not meet the reliability requirement is an abuse of discretion. Cooper Tire & Rubber Co. v.
Mendez, 204 S.W.3d 797, 800 (Tex. 2006).
As the Texas Supreme Court recently confirmed, even a qualified expert’s opinion is
inadmissible if it is unreliable:
If the expert brings only his credentials and a subjective opinion, his testimony is
fundamentally unsupported and therefore of no assistance to the jury. The mere ipse
dixit of the expert—that is, asking the jury to take the expert’s word for it because
he is an expert—will not suffice. Instead, an expert’s conclusions must have a
reliable basis other than the expert’s say-so. And if no basis for the expert opinion
is offered, or the basis offered provides no support, the opinion is merely a
conclusory statement and cannot be considered probative evidence.
Helena Chemical Co. v. Cox, Case No 20-0881, 2023 WL 2335694, at *4 (Tex. March 3, 2023)
(cleaned up).
Moreover, an expert opinion lacks foundational reliability even if it includes “items that
are not intrinsically irrational, but that the law does not recognize as appropriate means for
measuring damages.” For example, in Yzaguirre v. KCS Resources, Inc., expert testimony
regarding the market value of natural gas relied on pricing under a long term contract, not on
prevailing price in comparable sales. The court noted that the legal definition of “market” requires
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using comparable sales and held that, because the data used by the expert was legally unsound, the
opinion resulting from that data was inadmissible. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532,
537-38, 543-44 (Tex. App.—Dallas 2000), aff'd, 53 S.W.3d 368 (Tex. 2001).
B. Requirements for lay opinion testimony.
Tex. R. Evid. 701 provides that if a witness is not testifying as an expert, “testimony in the
form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.”
The perception underlying the lay witness's testimony may be what was seen, heard,
smelled, tasted, touched or felt. Thus, Rule 701's requirement that the testimony be
based on the witness's perception presumes the witness observed or experienced
the underlying facts, thus meeting the personal-knowledge requirement of [R]ule
602. A speculative opinion, such as an opinion on what someone else was thinking
at a specific time, does not help the jury to either (1) understand the witness’
testimony better, or (2) decide the question of the other person's intent. Mere
conjecture does not assist the jury.
Bd. Of Trustees of Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, Inc.,
191 S.W.3d 185, 193 (Tex. App.—San Antonio 2005, pet. denied) (cleaned up).
The requirement that a lay witness’s opinion be “rationally based on the witness’s
perception” incorporates the personal knowledge requirement of Rule 602. The requirement also
insists on a rational connection between the opinion expressed and the data upon which it is based.
“An opinion is rationally based on perception if a reasonable person could draw that opinion under
the circumstances.” Merrill v. Sprint Waste Services LP, 527 S.W.3d 663, 670 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) “A lay person's opinion must be one that a person could
normally form from observed facts.” Knight Renovations, LLC v. Thomas, 525 S.W.3d 446, 453
(Tex. App.—Tyler 2017, no pet.). If the underlying data does not logically lead to the witness’s
opinion, the testimony should be excluded.
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C. Ms. Larios is not qualified to opine about the amount of Locke Lord’s charges
that were attributable to the patent infringement claims.
RTI bears the burden of proving that Ms. Larios is qualified as an expert witness. To do
so, RTI must demonstrate Ms. Larios possesses special knowledge as to the very matter on which
she proposes to give an opinion. Gammill, 972 S.W.2d at 718. Nothing about Ms. Larios’s
background or experience suggests she has special knowledge that allows her to determine the
amount of an outside law firm’s fees attributable to one cause of action asserted in a complex and
multi-faceted antitrust/Lanham Act/patent infringement case.
Ms. Larios admits she is not an expert in antitrust law or patent infringement law.'' She
also admits she is not an expert in the practice of patent litigation or the practice of antitrust
litigation.'? Nor is she an expert in keeping time records—Ms. Larios admits she has spent almost
her entire career as a full-time employee of RTI, during which she has never sent out an invoice
or recorded her own time.'? Ms. Larios is simply not qualified to offer an expert opinion regarding
the portion of Locke Lord’s fees attributable to RTI’s patent infringement claim.
Ms. Larios is also not qualified to offer her opinion as a lay witness. Ms. Larios did not
personally observe the millions of dollars of work done by the Locke Lord lawyers. She has no
personal knowledge of the manner in which the lawyers recorded their time. To the extent Ms.
Larios is deemed to have personal knowledge of the invoices Locke Lord sent to RTI, her opinion
is not one a person could normally form from observing the invoices. Knight Renovations, LLC v.
'! Larios Deposition, October 17, 2022, Page 30, line 8-18. See Exhibit B.
"Id.
'8 Td. at 29-30
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 15 of21
Thomas, 525 §.W.3d at 453. If a normal person would not form the same opinion from observing
the invoices, Ms. Larios may not offer a lay opinion. Jd.
D. Ms. Larios’s opinions are not reliable
Ms. Larios’s opinions are unreliable because (a) the methodology she employs to support
her opinion is irrational, illogical, and contrary to fact, (b) there is an unbridgeable analytical gap
between the data and her opinions, and (c) her proposed opinions are conclusory and speculative
and are no more than her subjective belief.
First, Ms. Larios admits she attributed fees for all time recorded by several key Locke Lord
lawyers to the patent infringement portion of the case, even the time each lawyer spent exclusively
on the antitrust or Lanham Act portions of the case. Ms. Larios argues that these lawyers—
including lead trial lawyer Roy Hardin—would not have been working on the case at all if the case
had not involved patent infringement. Ms. Larios ignores that if Mr. Hardin had not been working
on the antitrust and Lanham Act claims, other lawyers would have had to fill his shoes. Ms.
Larios’s methodology is unreliable and irrational because it attributes to the patent infringement
claim RTI’s fees for all the time spent by Mr. Hardin (and Mark Backofen, and Galyn Gafford) in
the Underlying Litigation—over $9 million by Mr. Hardin alone—while admitting a large portion
of that time was spent on matters other than patent infringement.
Second, Ms. Larios bases her opinion on the hourly value of attorney time recorded after
May 2010. But after May 2010, the amount of time recorded by Locke Lord lawyers bore no
relation to the amount of RTI’s payments. RTI’s payments after May 2010 were fixed and capped,
no matter how much time Locke Lord’s lawyers recorded or what part of the case the time related
to. Ms. Larios’s opinion purports to be the amount of patent-related fees that “RTI paid
Defendants,” not the amount of patent-related time entries. Because Ms. Larios bases her opinion
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 16 of 21
on nine years of time entries that were never billed to RTI and were never paid by RTI, her opinion
is unreliable and inadmissible.
Third, Ms. Larios offers no explanation for the methodology she employed (other than her
erroneous inclusion of all time of Mr. Hardin and several other lawyers). Ms. Larios simply asserts,
“T identified and highlighted all time entries that were related to the patent infringement portion of
the Underlying Litigation.” She offers no explanation of how she determined which time entries
were “related to the patent infringement portion of the Underlying Litigation,” or how she treated
time entries that were related to multiple causes of action. Likewise, Ms. Larios offers no
explanation for how she identified the expenses attributable to the patent infringement claim,
merely stating, “Specifically, I identified the expenses that were directly attributable to the patent
infringement portion of the Underlying litigation” and illogically attributing over a million dollars
of document management costs to the patent infringement portion of the case because “the antitrust
portion of the case was stayed during the time that this cost was incurred.” In short, Ms. Larios’s
opinion is speculative and conclusory:
[A]n expert's opinion must have a demonstrable and reasoned basis on which to
evaluate his opinion. This basis must come in the form of an answer to the question
“Why”: Why did the expert reach that particular opinion?
But not any explanation will suffice. When an expert's opinion is based on assumed
facts that vary materially from the actual, undisputed facts, the opinion is without
probative value and cannot support a verdict or judgment. And even when some
basis is offered for an opinion, if that basis does not, on its face, support the opinion,
the opinion is still conclusory.
Rogers v. Zanetti, 518 S.W.3d 394, 405-06 (Tex. 2017) (cleaned up).
For the above reasons, Ms. Larios’s opinions are not reliable and therefore are
inadmissible.
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 17 of21
E. Ms. Larios’s opinions are irrelevant, misleading, and prejudicial.
In its theory on causation and damages, RTI asserts that it would not have brought a claim
for patent infringement if Locke Lord had not committed malpractice. Even if one assumes this
theory is legally permissible, which Locke Lord denies, Ms. Larios’s proposed opinions do not
help prove it. The amount of RTI’s fees attributable to the patent infringement portion of the
Underlying Litigation is irrelevant.
As the Texas Supreme Court held in Rogers v. Zanetti:
As a matter of necessity, every trial-malpractice action therefore involves a
comparison of two cases: the case containing imprudent attorney conduct and the
case the plaintiff claims should have unfolded with competent representation. The
first case actually occurred, and its result is beyond question. The other case is, of
course, a hypothetical one with a hypothetical result.
518 S.W.3d at 407-08 (cleaned up). Here, the case that “actually occurred” was a case with
antitrust, Lanham Act, and patent infringement claims. To have any hope of proving causation and
damages, RTI must compare the amount RTI actually paid in the Underlying Litigation to the
amount that RTI would have paid Locke Lord for representation in a different, hypothetical case—
an antitrust and Lanham Act case with no patent infringement claim.
Ms. Larios’s proposed opinion does not address this hypothetical second case. She only
estimates the amount of fees and expenses attributable to the patent infringement claim in
Underlying Litigation—the case that actually occurred. Even assuming arguendo Ms. Larios could
accurately estimate that amount, it would not provide the necessary proof: the amount RTI would
have paid in a hypothetical lawsuit limited to antitrust and Lanham Act claims.
The difference is significant. In the actual case, Locke Lord agreed to switch to a hybrid
contingent fee only after it had already won the patent infringement portion of the case. The patent
infringement victory was an important consideration in Locke Lord’s decision to switch from an
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 18 of21
hourly fee arrangement. If the case had been filed without a patent infringement claim, there would
have been no patent infringement judgment to build on, and Locke Lord would not have agreed to
a hybrid contingent fee. If RTI would have paid Locke Lord under the original, hourly fee
agreement, RTI’s fees and expenses in the hypothetical “no patent infringement” case would have
been much higher than the capped fees and expenses that RTI actually paid in the Underlying
Litigation.'4
In short, Ms. Larios’s opinion is irrelevant because she does not attempt to estimate the
cost of a hypothetical representation in a case that did not include a patent infringement claim—a
representation that would never have been handled on a contingent, capped payment basis.
Because Ms. Larios relied on an irrelevant and legally unsound comparison of data, the resulting
opinion is misleading, prejudicial, and inadmissible. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532,
537-38, 543-44 (Tex. App.—Dallas 2000), aff'd, 53 S.W.3d 368 (Tex. 2001)
IV. CONCLUSION
For all the above reasons, the Court should strike the proposed opinion testimony of Ms.
Larios.
V. PRAYER
WHEREFORE, Defendants Locke Lord LLP and Roy Hardin respectfully pray that the
Court grant their Objections and Motion to Strike Opinion Testimony of Michele Larios, hold that
Ms. Larios may not offer testimony regarding her opinion of the amount of fees and expenses that
'4 After Locke Lord agreed to change the fee agreement in May 2010, RTI was only obligated to pay $2
million per year and no longer had to pay expenses. From May 2010 to the 2019, Locke Lord invested over
$43 million in attorney time and expenses in the Underlying Litigation. During the same time period, RTI
only paid Locke Lord $14.7 million, and paid no expenses.
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 19 of21
were attributable to the patent infringement portion of the Underlying Litigation, and for such other
relief as to which Defendants may be justly entitled.
Dated: March 10, 2023
Respectfully submitted,
/s/ Jeffrey M. Tillotson
Jeffrey M. Tillotson
Texas Bar No. 20039200
jtillotson@tillotsonlaw.com
TILLOTSON JOHNSON & PATTON
1807 Ross Avenue, Suite 325
Dallas, Texas 75201
(214) 382-3041 Telephone
(214) 292-6564 Facsimile
and
/s/ Paul M. Koning
Paul M. Koning
State Bar No. 11671300
paul.koning@koningrubarts.com
Brent E. Basden
State Bar No. 24047828
brent.basden@koningrubarts.com
KONING RUBARTS LLP
1700 Pacific Avenue, Suite 4500
Dallas, Texas 75201
Telephone: (214) 751-7900
Facsimile: (214) 751-7888
ATTORNEYS FOR DEFENDANTS LOCKE
LORD LLP AND ROY HARDIN
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page 20 of 21
CERTIFICATE OF SERVICE
Thereby certify that a copy of the foregoing instrument was electronically served upon the
attorneys of record of all parties to the above cause in accordance with the Texas Rules of Civil
Procedure on this 10th day of March 2022.
/s/ Paul M. Koning
DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE
OPINION TESTIMONY OF MICHELE LARIOS Page21 of21
Defendant's Objections andto and Motion to Strike Opinion Testimony of Michele Larios - Page 22
EXHIBIT A
Electronically Served
Defendant's Objections to and Motion to Strike Opinion Testimony of Michele Larios - Page 23
12/16/2022 2:03 PM
CAUSE NO. DC-19-17946
RETRACTABLE TECHNOLOGIES, INC. IN THE DISTRICT COURT
Plaintiff
Vv.
44th JUDICIAL DISTRICT
LOCKE LORD, LLP, and
ROY HARDIN
Defendants. DALLAS COUNTY, TEXAS
EXPERT REPORT
OF MICHELE M. LARIOS
1 I am the Vice-President and General Counsel of Retractable Technologies, Inc.
(‘RTI” or “Plaintiff’). RTI is in the business of marketing and developing safety syringe
technology. I received my law degree from Pepperdine University School of Law in 1991,
became licensed to practice law in the State of California in 1992, and I started working at
RTI in 1998. I became licensed to practice law in the State of Texas in 2002 and I became
RTI’s General Counsel in 2003.
2. I have personal knowledge regarding my experience as Vice-President and General
Counsel of RTI, my review of RTI’s business records, my personal observation of the
actions of Locke Lord, LLP (“Locke Lord”) and Roy Hardin (“Hardin”) (Locke Lord and
Hardin are collectively referred to herein as “Defendants”),
Preview
FILED 3/10/2023 3:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY CAUSE NO. DC-19-17946 RETRACTABLE IN THE DISTRICT COURT TECHNOLOGIES, INC. Plaintiff, Vv. 44TH JUDICIAL DISTRICT LOCKE LORD LLP and ROY HARDIN DALLAS COUNTY, TEXAS Defendants DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Defendants Locke Lord LLP and Roy Hardin (“Defendants” or “Locke Lord”) file this Objection to and Motion to Strike Opinion Testimony of Michele Larios, a witness designated as an expert by Plaintiff Retractable Technologies, Inc., (“RTI”), as follows: I SUMMARY This is a legal malpractice case. For its proof of causation and damages, RTI relies entirely on the opinion of its own general counsel, Michele Larios. By this Motion, Locke Lord objects to Ms. Larios’s proposed opinion testimony on multiple grounds and moves to exclude Ms. Larios from offering her opinion at trial. RTI’s Claim. This case relates to Locke Lord’s representation of RTI in complex litigation (the “Underlying Litigation”) against Becton Dickinson (“BD”). The Underlying Litigation included claims of patent infringement, antitrust, and violations of the Lanham Act. In this malpractice case, RTI’s primary claim is that Locke Lord failed to tell RTI that the Fifth Circuit had already ruled out one of RTI multiple antitrust arguments. Specifically, RTI contends that prior DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page | of 21 Fifth Circuit authority precluded RTI’s claim that BD’s patent infringement was anticompetitive conduct that helped support an antitrust claim.! RTI’s Causation and Damages Theory. In fact, Locke Lord advised RTI about the two prior Fifth Circuit cases three years before the trial of RTI’s antitrust claim against BD. But RTI alleges Locke Lord should have advised RTI about those cases earlier. RTI claims that if Locke Lord had advised RTI about the two prior Fifth Circuit cases before RTI filed suit, RTI would not have asserted the patent infringement portion of the Underlying Litigation. Even though RTI won the patent infringement claim and collected approximately $7.7 million from BD. Nonetheless, RTI claims it was damaged by filing the patent infringement claim. RTI contends the fees and expenses “attributable” to the patent infringement claim exceeded the $7.7 million recovered from BD. Locke Lord’s Position. At the outset, it is dispositive of this matter that RTI’s causation and damages claim—unsupported by proof that different representation would have resulted in a better outcome—is legally impermissible in a legal malpractice case.* That alone should decide the issue. But even if RTI’s causation and damages claim were legally permissible, RTI cannot ' Locke Lord disagrees with RTI’s characterization of the previous Fifth Circuit authority and has asked this Court to decide this pure question of law. See Locke Lord’s Motion for Pretrial Conference pursuant to Rule 166 and for Rule 166(g) Determination of Question of Law, filed February 27, 2023. ? In a legal malpractice claim arising from litigation, the plaintiff must always prove that it would have achieved a better result but for the alleged malpractice. Rogers v. Zanetti, 518 S.W.3d 394, 401 (Tex. 2017) (“When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the client would have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper standard of care”). RTI concedes that it has no such proof. Although a plaintiff may seek to recover attorneys’ fees incurred to fix a problem caused by legal malpractice, RTI makes no such claim here. RTI’s theory of causation and damages is a thinly disguised claim for fee disgorgement, which is not available in a professional negligence case. See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 433 (Tex. App.—Austin 2009, no pet.) (claim for a return of fees “amounts to an end-run around the breach and causation elements of a professional-negligence claim”); Ochoa-Bunsow v. Soto, 587 S.W.3d 431, 442 (Tex. App.—EI Paso 2019, pet. denied) (dismissal of fee forfeiture claim was harmless error because breach of fiduciary duty claim was really fractured negligence claim). DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 2 of 21 prove that claim simply by estimating the actual fees and expenses attributable to the patent infringement claim—the Texas Supreme Court has made clear that proof of “but for” causation requires an altogether different analysis.’ And even if RTI could overcome those two hurdles, the actual fees and expenses attributable to the patent infringement claim do not exceed the $7.7 million RTI recovered from BD on the patent infringement claim.* RTI has proffered this so-called “causation and damage” opinion testimony through Michele Larios, RTI’s own general counsel. Those self-serving “opinions” are speculative, conclusory, do not satisfy even the most minimal requirements for reliability, and should be barred in their entirety. Opinion Testimony at Issue. RTI has designated Michele Larios to offer her opinion as to the amount of fees and expenses “attributable” to the patent infringement cause of action. With no reliable methodology or credentials to do so, Ms. Larios contends that the attributable portion of fees was $14,244,705, and the attributable amount of expenses was $3,884,354, for a total of $18,129,059. After crediting the $7,724,826 recovered under the patent infringement judgment, Ms. Larios concludes that RTI was damaged in the amount of $10,404,233.5 Summary of Objections. Ms. Larios’s testimony is improper and should be excluded. As shown below: 3 See discussion at pages 18-19, infra. 4 Ms. Larios’s calculation is based on irrational and unreliable methodology and Ms. Larios ignores that Locke Lord was on a contingent fee arrangement starting in 2010. See discussion at pages 16-17, infra. 5 Ms. Larios contends in the alternative that the attributable portion of fees was $8 million and that RTI’s total damages were $4,159,528. This alternative opinion fails for the same reasons as the $10,404,233 opinion. Additionally, Ms. Larios’s $8 million fee estimate—based solely on an off-the-cuff comment from Roy Hardin—lacks a reliable foundation and is conclusory. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 3 of 21 1 Ms. Larios is not qualified to offer an opinion on the amount of fees and expenses attributable to the patent infringement cause of action. Ms. Larios admits she is neither an expert in patent or antitrust litigation and has never recorded any of her time during her long tenure at RTL Ms. Larios has no expertise that qualifies her to apportion a law firm’s fees to different causes of action asserted by the law firm in a single lawsuit. 2 Ms. Larios’s proposed testimony is not reliable because the methodology she employs to support her opinion is irrational, illogical, and contrary to fact, and because there is too great an analytical gap between the data and her opinion. Among other things, Ms. Larios allocates to the patent infringement claim all billed time of lawyers who are experienced in patent infringement law, regardless of the services they actually provided in the case. This includes all of the time of the lead trial counsel in the antitrust trial. In other words, she allocated billed time to the patent infringement case merely because the lawyer who billed it was experienced in patent law and not based on the actual work done. 3 As a result, Ms. Larios’s proposed opinion is inadmissible because it is conclusory and speculative and is no more than her subjective belief. Ms. Larios offers no explanation for how she reaches her opinion; she just states her conclusion. 4 Ms. Larios’s proposed testimony is irrelevant and misleading. Even if RTI were legally permitted to claim fee disgorgement in a negligence action, Ms. Larios’s opinion would not match RTI’s burden of proof. To meet its burden, RTI would be required to provide a comparison of (a) the total amount of fees and expenses that were actually incurred in the Underlying Litigation, and (b) the hypothetical amount that would have been incurred if a case had been filed with antitrust and Lanham Act claims alone (a “patent-free case”). But Ms. Larios only opines about the amount of fees attributable to the patent portion of Underlying Litigation (as DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 4 of 21 it actually happened), which is entirely different from the amount that would have been incurred in a hypothetical, patent-free case. For one thing, if RTI had brought a patent-free case Locke Lord would never have agreed to a contingent/flat fee agreement. (Locke Lord only agreed to a contingent/flat fee agreement in the Underlying Litigation after it had won the patent infringement trial and had the patent infringement judgment in hand.) RTI’s damages theory requires a determination of the full cost (without a flat fee cap) of a patent-free antitrust/Lanham Act case, less the $7.7 million RTI received from its patent win. Ms. Larios’s proposed testimony does not address the hypothetical patent-free case and is therefore irrelevant and misleading. 5 There is a grave danger that if Ms. Larios is allowed to identify herself as a lawyer and offer her opinion on the amount of fees and expenses attributable to RTI’s patent infringement claims, a lay jury will assign undue weight to her testimony. Allowing Ms. Larios to provide unqualified, unreliable, conclusory, and irrelevant opinion testimony will unduly prejudice Locke Lord. Relief Requested. The Court should exclude any opinion testimony from Ms. Larios regarding the amount of fees and expenses attributable to the patent infringement claims in the Underlying Litigation. I. FACTS A Background—the Underlying Litigation. The Underlying Litigation pertained to retractable safety syringes, RTI’s main product. RTI alleged that BD’s illegal conduct prevented RTI from competing fairly for sales of safety syringes in the hospital market. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 5 of 21 Before filing the Underlying Litigation, Locke Lord had represented RTI in another antitrust claim against BD. That claim, filed in the Eastern District of Texas, settled in 2004 for a payment of $100,000,000.00. Yet only two years later, RTI sought to bring another lawsuit against BD. Locke Lord filed the Underlying Litigation for RTI in June 2007. RTI alleged traditional violations of antitrust, unfair competition, and patent infringement law. For example, RTI alleged that BD—the world’s leading supplier of conventional disposable syringes—used restrictive contracts that illegally induced customers to buy BD’s safety syringes rather than RTI’s (contractual antitrust claims). Later in the litigation, RTI also alleged that BD had made false representations in the marketplace about RTI’s and BD’s competing products (false advertising claims under the Lanham Act). And RTI alleged that BD’s copycat versions of retractable syringes violated RTI’s patents (patent infringement claims). RTI also alleged that, in addition to violating the patent laws, BD’s sales of copycat syringes supported RTI’s antitrust claim. RTI alleged that (a) BD’s infringing copycat syringes were of poor quality, and (b) BD knowingly left the infringing syringes on the market not to make a profit, but to drive down demand for RTI’s patented retracting syringes. By tainting the market for RTI’s innovative retracting syringes with an infringing product, BD sought to maintain its monopoly in the traditional syringe market by delaying the market’s adoption of RTI’s innovative retracting syringes until after RTI’s patents expired, ultimately driving RTI out of business. RTI therefore alleged that BD’s patent infringement, when taken together with BD’s exclusive dealing contracts and unfair competition, satisfied the “anticompetitive conduct” element of an antitrust claim. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 6 of 21 B. Locke Lord’s multiple victories. After the case was filed in 2007, the court severed the patent infringement case and temporarily stayed the antitrust case. Locke Lord then won multiple victories for RTI. First, Locke Lord won a multimillion-dollar patent infringement judgment against BD, including damages and an injunction. RTI ultimately collected the judgment in full (approximately $7.7 million). Ironically, this is the claim that RTI now claims it would not have pursued. . Second, in the antitrust suit, Locke Lord successfully defeated multiple challenges to the notion that BD’s patent infringement could support the anticompetitive conduct element of an antitrust claim. Both the Chief District Judge of the Eastern District of Texas and the United States Magistrate Judge wrote detailed opinions holding that RTI was entitled to assert the “patent infringement as anticompetitive conduct” theory due to the unique facts of the case.° These opinions expressly rejected BD’s argument (and RTI’s current claim) that the theory was foreclosed by prior Fifth Circuit authority. e Third, Locke Lord won a jury verdict for $113 million in the antitrust case. e Fourth, before entering judgment, the district court again expressly rejected RTI’s argument that the two prior Fifth Circuit cases held that patent infringement could not support the exclusionary conduct element of an attempted monopolization claim. e Fifth, the district court entered judgment for RTI in the amount of $352 million and imposed immediate injunctive relief. ° See the opinions of United States District Judge Leonard Davis and United States Magistrate Judge Roy S. Payne, Retractable Techs., Inc. v. Becton, Dickinson & Co., No. 2:08-CV-16, 2013 WL 4806905 (E.D. Tex. Sept. 9, 2013). DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 7 of 21 Unfortunately, as sometimes happens, two years later the Fifth Circuit reversed the judgment. The Fifth Circuit’s opinion cited to the two prior Fifth Circuit cases’ in discussing the use of patent infringement to prove an antitrust violation. C. RTI’s malpractice claim. In this malpractice case, RTI alleges that the two older Fifth Circuit cases held that patent infringement may never be used to support an antitrust claim. This theory (using patent infringement conduct to support a claim of monopolization) was only one of several theories used by Locke Lord to advocate RTI’s antitrust claim. Throughout the litigation, Locke Lord maintained that the two Fifth Circuit cases did not foreclose the specific theory advocated by Locke Lord; namely that the defendant infringed on RTI’s patent not to steal its technology but as a means of keeping RTI out of the market.’ For ten years of active litigation, the theory advocated by Locke Lord prevailed. Although Locke Lord advised RTI about the two opinions three years before trial, RTI complains now that Locke Lord should have done so even earlier and, notwithstanding the multiple district court opinions expressly agreeing with Locke Lord’s position, should have predicted the future Fifth Circuit ruling. As to the elements of proximate cause and damages, RTI concedes it does not intend to prove that the outcome of the litigation would have been more favorable under any circumstances, including if Locke Lord had advised RTI earlier about the two Fifth Circuit cases. Instead, RTI contends that if it had known of the two cases it would never have included a patent infringement 7 Kinnear-Weed Corp. v. Humble Oil & Ref. Co., 214 F.2d 891, 893 (5th Cir. 1954) (“Kinnear-Weed”); Northwest Power Prods., Inc. v. Omark Indus., Inc., 576 F.2d 83 (5th Cir. 1978) (“Northwest Power Products’). 8 Locke Lord argued that the two opinions merely spoke to the requirement of proving public injury (e.g., that the conduct complained of injured not just the individual plaintiff but the public) but did not preclude the use of a defendant’s patent infringement to prove the separate element of anticompetitive conduct. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 8 of 21 claim in the Underlying Litigation. RTI claims that it would have been better off if it had not included the patent infringement claim, because, according to RTI, the fees and expenses it claims were attributable to the patent infringement claim turned out to be greater than the $7.7 million recovery. D. Michele Larios’s proposed expert testimony. On December 16, 2022, RTI designated Michele Larios as an expert and fact opinion witness. Ms. Larios has been the general counsel of RTI for many years, including during the Underlying Litigation. RTI submitted an expert report of Ms. Larios along with the designation.° As relevant to this Motion, the Larios Report describes Ms. Larios’s proposed opinions as to the amount of fees and expenses directly attributable to RTI’s patent infringement claim against BD: 18. Based on my review of the time entries, invoices, the Affidavit of Roy Hardin submitted in the Underlying Litigation, and/or the bills provided by Defendants to RTI, from midmid-2006 [sic] to September 2013, RTI paid Defendants $14,244,705.00 in attorneys’ fees that were directly attributable to the patent infringement claims against BD. 19. In calculating this amount, I reviewed the time entries, invoices, and/or bills provided by Defendants. During my review, I identified and highlighted all time entries that were related to the patent infringement portion of the Underlying Litigation (see RTI 168737-170247). Additionally, I identified the time entries for the attorneys from Locke Lord that were intellectual property attorneys (i.e., patent attorneys). I then identified all the time spent on the Underlying Litigation by Hardin (RTI 170248). I identified all the time spent by Hardin because he was only involved in the Underlying Litigation because of his patent experience, and he would not have been involved with the Underlying Litigation but for the patent infringement component of the case. As such, all of Hardin’s time billed on the Underlying Litigation was directly related to the patent infringement portion of the case. 20. I then calculated the total amount of money that was attributable to the patent infringement portion of the case by adding up the dollar value for the time entries that were directly related to the patent infringement portion of the case, including ° The Larios Report is attached as Exhibit A. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 9 of 21 all the time entries for the intellectual property attorneys, and all the time spent by Hardin on the Underlying Litigation. This amount totaled up to $14,244,705.00. 21. Additionally, based on my review of the payments that were made by RTI from January 2007 to September 2013, RTI paid $3,884,354.00 in third-party litigation expenses that were directly attributable to the patent infringement claims against BD. Specifically, I identified the expenses that were directly attributable to the patent infringement portion of the Underlying litigation. The expenses that were directly attributable to the patent infringement portion of the case are highlighted on RTI 168734. One of the expenses related to document production (Merrill Corporation) and I conservatively estimated that approximately 90% of this expense was directly attributable to the patent infringement portion of the case. Primarily, I estimated this amount because the antitrust portion of the case was stayed during the time that this cost was incurred. Furthermore, most of the highlighted expenses occurred when the antitrust portion of the case was stayed. 22. Based on my review of the time entries and/or bills provided by Defendants to RTI and my review of the payments made by RTI to Defendants, from January 2007 to September 2013, RTI spent a total of $18,129,059.00 in attorneys’ fees and third-party litigation expenses that were directly attributable to the patent infringement claims that were asserted by RTI against BD only to recover $7,724,826.00 in connection with the patent infringement claims. 29. On September 6, 2007, BD filed a retaliatory patent infringement suit against RTI that they had not filed prior to the filing of the Underlying Litigation. As a result of BD’s patent infringement suit against RTI, RTI incurred $542,902.32 in attorneys’ fees and $152,743.59 in third-party litigation expenses that would not have been incurred if Defendants had disclosed the 1954 and 1978 cases from the Fifth Circuit. 30. In the alternative, it is my understanding that Defendants claim that less of their attorneys’ fees were directly attributable to the patent infringement portion of the Underlying Litigation than $14,244,705.00; however, Hardin represented to me that Locke Lord had been paid $8,000,000 dollars in attorneys’ fees by RTI for the patent infringement portion of the Underlying Litigation (see RTI 137311). As described above, I do not agree with Hardin’s total based on my review of the time entries; however, at a minimum, even based on Hardin’s calculations, RTI spent $11,884,354 ($8 million in attorneys’ fees plus $3,884,354.00 in third-party litigation expenses that were directly attributable to the patent infringement claims) only to recover $7,724,826.00. Accordingly, at a minimum (according to Hardin’s calculations), as a direct and proximate result of the Defendants’ actions and/or incorrect legal advice, RTI lost at least $4,159,528.00 in attorneys’ fees and third- party litigation expenses pursuing the patent infringement claims against BD. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 10 of21 Whether considered to be expert witness or lay witness testimony, Ms. Larios’s opinions are improper and inadmissible and should not be allowed into evidence, for the reasons discussed below. E. Under the parties’ modified fee agreement, lawyer time entries had no effect on the amount RTI paid Locke Lord. To understand the flawed and unreliable nature of Ms. Larios’s opinion, it is important to understand the parties’ fee agreements and billing format. RTI’s original fee agreement with Locke Lord (2007) called for a discounted hourly rate, with RTI paying all expenses. There was a single client-matter number set up for the Underlying Litigation, and all attorney time in the Underlying Litigation was recorded to that matter, whether the work was attributable to RTI’s antitrust, Lanham Act, or patent infringement claims.'° For amounts incurred under the original hourly fee agreement, any attempt to determine the amount of fees attributable to the patent infringement cause of action would require review and classification of thousands of individual time entries. But after three years, lawyer time entries no longer affected the amount of RTI’s payments. In May 2010, after Locke Lord had won the patent infringement judgment for RTI, RTI asked to modify the original hourly fee agreement. Locke Lord agreed, and the fee agreement was changed to a contingent/flat payment arrangement. Under the May 2010 fee agreement, Locke Lord would no longer charge hourly fees on the Underlying Litigation and would pay all expenses in the Underlying Litigation, including millions of dollars in anticipated expert fees. In return, RTI gave Locke Lord a 30% contingent interest in the antitrust portion of the Underlying Litigation and agreed to pay a flat amount of $2 million per year. As it turned out, after May 2010, Locke '© This was one exception—a separate matter number was set up for a patent infringement claim that BD brought against RTI. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 11 of21 Lord invested over $43 million in time and out of pocket expenses in the Underlying Litigation, while RTI only paid Locke Lord $14.7 million. Locke Lord lawyers continued to record time after May 2010, and Locke Lord periodically provided those time records to RTI in the form of informational statements. But after May 2010 RTI never paid Locke Lord based on recorded time. Because there is no relationship between Locke Lord’s post-May 2010 time entries and the amount RTI paid Locke Lord, those time entries may not be used in determining the amount of actual fees attributable to the patent infringement portion of the case. Til. ARGUMENT AND AUTHORITIES A Requirements for expert opinion testimony. Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding the evidence or determining a fact issue. The party offering the expert's testimony bears the burden to prove that the witness is qualified. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). The offering party must demonstrate that the witness possesses special knowledge as to the very matter on which he proposes to give an opinion. Jd. Expert testimony must be relevant and based on a reliable foundation. Guadalupe—Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002). In determining reliability, the trial court should evaluate the methods, analysis, and principles relied on by the expert in reaching the opinion and ensure that the opinion comports with applicable professional standards and has a reliable basis in the knowledge and experience of the discipline. Gammill, 972 S.W.2d at 725-26. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 12 of21 The reliability requirement focuses on the principles, research, and methodology underlying an expert's conclusions. Kerr—McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004). Expert testimony is unreliable if there is too great an analytical gap between the data and the opinion proffered. Gammill, 972 S.W.2d at 726. Further, expert testimony is unreliable if it is no more than subjective belief or unsupported speculation. Kerr-McGee Corp., 133 S.W.3d at 254. Opinion testimony that is conclusory or speculative is not relevant evidence because it does not tend to make the existence of a material fact more probable or less probable. General Motors Corp. v. Iracheta, 161 S.W.3d 462, 470-71 (Tex. 2005). The admission of expert testimony that does not meet the reliability requirement is an abuse of discretion. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). As the Texas Supreme Court recently confirmed, even a qualified expert’s opinion is inadmissible if it is unreliable: If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury. The mere ipse dixit of the expert—that is, asking the jury to take the expert’s word for it because he is an expert—will not suffice. Instead, an expert’s conclusions must have a reliable basis other than the expert’s say-so. And if no basis for the expert opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence. Helena Chemical Co. v. Cox, Case No 20-0881, 2023 WL 2335694, at *4 (Tex. March 3, 2023) (cleaned up). Moreover, an expert opinion lacks foundational reliability even if it includes “items that are not intrinsically irrational, but that the law does not recognize as appropriate means for measuring damages.” For example, in Yzaguirre v. KCS Resources, Inc., expert testimony regarding the market value of natural gas relied on pricing under a long term contract, not on prevailing price in comparable sales. The court noted that the legal definition of “market” requires DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 13 of21 using comparable sales and held that, because the data used by the expert was legally unsound, the opinion resulting from that data was inadmissible. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 537-38, 543-44 (Tex. App.—Dallas 2000), aff'd, 53 S.W.3d 368 (Tex. 2001). B. Requirements for lay opinion testimony. Tex. R. Evid. 701 provides that if a witness is not testifying as an expert, “testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” The perception underlying the lay witness's testimony may be what was seen, heard, smelled, tasted, touched or felt. Thus, Rule 701's requirement that the testimony be based on the witness's perception presumes the witness observed or experienced the underlying facts, thus meeting the personal-knowledge requirement of [R]ule 602. A speculative opinion, such as an opinion on what someone else was thinking at a specific time, does not help the jury to either (1) understand the witness’ testimony better, or (2) decide the question of the other person's intent. Mere conjecture does not assist the jury. Bd. Of Trustees of Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, Inc., 191 S.W.3d 185, 193 (Tex. App.—San Antonio 2005, pet. denied) (cleaned up). The requirement that a lay witness’s opinion be “rationally based on the witness’s perception” incorporates the personal knowledge requirement of Rule 602. The requirement also insists on a rational connection between the opinion expressed and the data upon which it is based. “An opinion is rationally based on perception if a reasonable person could draw that opinion under the circumstances.” Merrill v. Sprint Waste Services LP, 527 S.W.3d 663, 670 (Tex. App.— Houston [14th Dist.] 2017, no pet.) “A lay person's opinion must be one that a person could normally form from observed facts.” Knight Renovations, LLC v. Thomas, 525 S.W.3d 446, 453 (Tex. App.—Tyler 2017, no pet.). If the underlying data does not logically lead to the witness’s opinion, the testimony should be excluded. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 14 of21 C. Ms. Larios is not qualified to opine about the amount of Locke Lord’s charges that were attributable to the patent infringement claims. RTI bears the burden of proving that Ms. Larios is qualified as an expert witness. To do so, RTI must demonstrate Ms. Larios possesses special knowledge as to the very matter on which she proposes to give an opinion. Gammill, 972 S.W.2d at 718. Nothing about Ms. Larios’s background or experience suggests she has special knowledge that allows her to determine the amount of an outside law firm’s fees attributable to one cause of action asserted in a complex and multi-faceted antitrust/Lanham Act/patent infringement case. Ms. Larios admits she is not an expert in antitrust law or patent infringement law.'' She also admits she is not an expert in the practice of patent litigation or the practice of antitrust litigation.'? Nor is she an expert in keeping time records—Ms. Larios admits she has spent almost her entire career as a full-time employee of RTI, during which she has never sent out an invoice or recorded her own time.'? Ms. Larios is simply not qualified to offer an expert opinion regarding the portion of Locke Lord’s fees attributable to RTI’s patent infringement claim. Ms. Larios is also not qualified to offer her opinion as a lay witness. Ms. Larios did not personally observe the millions of dollars of work done by the Locke Lord lawyers. She has no personal knowledge of the manner in which the lawyers recorded their time. To the extent Ms. Larios is deemed to have personal knowledge of the invoices Locke Lord sent to RTI, her opinion is not one a person could normally form from observing the invoices. Knight Renovations, LLC v. '! Larios Deposition, October 17, 2022, Page 30, line 8-18. See Exhibit B. "Id. '8 Td. at 29-30 DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 15 of21 Thomas, 525 §.W.3d at 453. If a normal person would not form the same opinion from observing the invoices, Ms. Larios may not offer a lay opinion. Jd. D. Ms. Larios’s opinions are not reliable Ms. Larios’s opinions are unreliable because (a) the methodology she employs to support her opinion is irrational, illogical, and contrary to fact, (b) there is an unbridgeable analytical gap between the data and her opinions, and (c) her proposed opinions are conclusory and speculative and are no more than her subjective belief. First, Ms. Larios admits she attributed fees for all time recorded by several key Locke Lord lawyers to the patent infringement portion of the case, even the time each lawyer spent exclusively on the antitrust or Lanham Act portions of the case. Ms. Larios argues that these lawyers— including lead trial lawyer Roy Hardin—would not have been working on the case at all if the case had not involved patent infringement. Ms. Larios ignores that if Mr. Hardin had not been working on the antitrust and Lanham Act claims, other lawyers would have had to fill his shoes. Ms. Larios’s methodology is unreliable and irrational because it attributes to the patent infringement claim RTI’s fees for all the time spent by Mr. Hardin (and Mark Backofen, and Galyn Gafford) in the Underlying Litigation—over $9 million by Mr. Hardin alone—while admitting a large portion of that time was spent on matters other than patent infringement. Second, Ms. Larios bases her opinion on the hourly value of attorney time recorded after May 2010. But after May 2010, the amount of time recorded by Locke Lord lawyers bore no relation to the amount of RTI’s payments. RTI’s payments after May 2010 were fixed and capped, no matter how much time Locke Lord’s lawyers recorded or what part of the case the time related to. Ms. Larios’s opinion purports to be the amount of patent-related fees that “RTI paid Defendants,” not the amount of patent-related time entries. Because Ms. Larios bases her opinion DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 16 of 21 on nine years of time entries that were never billed to RTI and were never paid by RTI, her opinion is unreliable and inadmissible. Third, Ms. Larios offers no explanation for the methodology she employed (other than her erroneous inclusion of all time of Mr. Hardin and several other lawyers). Ms. Larios simply asserts, “T identified and highlighted all time entries that were related to the patent infringement portion of the Underlying Litigation.” She offers no explanation of how she determined which time entries were “related to the patent infringement portion of the Underlying Litigation,” or how she treated time entries that were related to multiple causes of action. Likewise, Ms. Larios offers no explanation for how she identified the expenses attributable to the patent infringement claim, merely stating, “Specifically, I identified the expenses that were directly attributable to the patent infringement portion of the Underlying litigation” and illogically attributing over a million dollars of document management costs to the patent infringement portion of the case because “the antitrust portion of the case was stayed during the time that this cost was incurred.” In short, Ms. Larios’s opinion is speculative and conclusory: [A]n expert's opinion must have a demonstrable and reasoned basis on which to evaluate his opinion. This basis must come in the form of an answer to the question “Why”: Why did the expert reach that particular opinion? But not any explanation will suffice. When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment. And even when some basis is offered for an opinion, if that basis does not, on its face, support the opinion, the opinion is still conclusory. Rogers v. Zanetti, 518 S.W.3d 394, 405-06 (Tex. 2017) (cleaned up). For the above reasons, Ms. Larios’s opinions are not reliable and therefore are inadmissible. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 17 of21 E. Ms. Larios’s opinions are irrelevant, misleading, and prejudicial. In its theory on causation and damages, RTI asserts that it would not have brought a claim for patent infringement if Locke Lord had not committed malpractice. Even if one assumes this theory is legally permissible, which Locke Lord denies, Ms. Larios’s proposed opinions do not help prove it. The amount of RTI’s fees attributable to the patent infringement portion of the Underlying Litigation is irrelevant. As the Texas Supreme Court held in Rogers v. Zanetti: As a matter of necessity, every trial-malpractice action therefore involves a comparison of two cases: the case containing imprudent attorney conduct and the case the plaintiff claims should have unfolded with competent representation. The first case actually occurred, and its result is beyond question. The other case is, of course, a hypothetical one with a hypothetical result. 518 S.W.3d at 407-08 (cleaned up). Here, the case that “actually occurred” was a case with antitrust, Lanham Act, and patent infringement claims. To have any hope of proving causation and damages, RTI must compare the amount RTI actually paid in the Underlying Litigation to the amount that RTI would have paid Locke Lord for representation in a different, hypothetical case— an antitrust and Lanham Act case with no patent infringement claim. Ms. Larios’s proposed opinion does not address this hypothetical second case. She only estimates the amount of fees and expenses attributable to the patent infringement claim in Underlying Litigation—the case that actually occurred. Even assuming arguendo Ms. Larios could accurately estimate that amount, it would not provide the necessary proof: the amount RTI would have paid in a hypothetical lawsuit limited to antitrust and Lanham Act claims. The difference is significant. In the actual case, Locke Lord agreed to switch to a hybrid contingent fee only after it had already won the patent infringement portion of the case. The patent infringement victory was an important consideration in Locke Lord’s decision to switch from an DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 18 of21 hourly fee arrangement. If the case had been filed without a patent infringement claim, there would have been no patent infringement judgment to build on, and Locke Lord would not have agreed to a hybrid contingent fee. If RTI would have paid Locke Lord under the original, hourly fee agreement, RTI’s fees and expenses in the hypothetical “no patent infringement” case would have been much higher than the capped fees and expenses that RTI actually paid in the Underlying Litigation.'4 In short, Ms. Larios’s opinion is irrelevant because she does not attempt to estimate the cost of a hypothetical representation in a case that did not include a patent infringement claim—a representation that would never have been handled on a contingent, capped payment basis. Because Ms. Larios relied on an irrelevant and legally unsound comparison of data, the resulting opinion is misleading, prejudicial, and inadmissible. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 537-38, 543-44 (Tex. App.—Dallas 2000), aff'd, 53 S.W.3d 368 (Tex. 2001) IV. CONCLUSION For all the above reasons, the Court should strike the proposed opinion testimony of Ms. Larios. V. PRAYER WHEREFORE, Defendants Locke Lord LLP and Roy Hardin respectfully pray that the Court grant their Objections and Motion to Strike Opinion Testimony of Michele Larios, hold that Ms. Larios may not offer testimony regarding her opinion of the amount of fees and expenses that '4 After Locke Lord agreed to change the fee agreement in May 2010, RTI was only obligated to pay $2 million per year and no longer had to pay expenses. From May 2010 to the 2019, Locke Lord invested over $43 million in attorney time and expenses in the Underlying Litigation. During the same time period, RTI only paid Locke Lord $14.7 million, and paid no expenses. DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 19 of21 were attributable to the patent infringement portion of the Underlying Litigation, and for such other relief as to which Defendants may be justly entitled. Dated: March 10, 2023 Respectfully submitted, /s/ Jeffrey M. Tillotson Jeffrey M. Tillotson Texas Bar No. 20039200 jtillotson@tillotsonlaw.com TILLOTSON JOHNSON & PATTON 1807 Ross Avenue, Suite 325 Dallas, Texas 75201 (214) 382-3041 Telephone (214) 292-6564 Facsimile and /s/ Paul M. Koning Paul M. Koning State Bar No. 11671300 paul.koning@koningrubarts.com Brent E. Basden State Bar No. 24047828 brent.basden@koningrubarts.com KONING RUBARTS LLP 1700 Pacific Avenue, Suite 4500 Dallas, Texas 75201 Telephone: (214) 751-7900 Facsimile: (214) 751-7888 ATTORNEYS FOR DEFENDANTS LOCKE LORD LLP AND ROY HARDIN DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page 20 of 21 CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing instrument was electronically served upon the attorneys of record of all parties to the above cause in accordance with the Texas Rules of Civil Procedure on this 10th day of March 2022. /s/ Paul M. Koning DEFENDANTS’ OBJECTION TO AND MOTION TO STRIKE OPINION TESTIMONY OF MICHELE LARIOS Page21 of21 Defendant's Objections andto and Motion to Strike Opinion Testimony of Michele Larios - Page 22 EXHIBIT A Electronically Served Defendant's Objections to and Motion to Strike Opinion Testimony of Michele Larios - Page 23 12/16/2022 2:03 PM CAUSE NO. DC-19-17946 RETRACTABLE TECHNOLOGIES, INC. IN THE DISTRICT COURT Plaintiff Vv. 44th JUDICIAL DISTRICT LOCKE LORD, LLP, and ROY HARDIN Defendants. DALLAS COUNTY, TEXAS EXPERT REPORT OF MICHELE M. LARIOS 1 I am the Vice-President and General Counsel of Retractable Technologies, Inc. (‘RTI” or “Plaintiff’). RTI is in the business of marketing and developing safety syringe technology. I received my law degree from Pepperdine University School of Law in 1991, became licensed to practice law in the State of California in 1992, and I started working at RTI in 1998. I became licensed to practice law in the State of Texas in 2002 and I became RTI’s General Counsel in 2003. 2. I have personal knowledge regarding my experience as Vice-President and General Counsel of RTI, my review of RTI’s business records, my personal observation of the actions of Locke Lord, LLP (“Locke Lord”) and Roy Hardin (“Hardin”) (Locke Lord and Hardin are collectively referred to herein as “Defendants”),