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Hafco Foundry and Machine Co., Inc. v. GMS Mine Repair And Maintenance, Inc.

United States District Court, S.D. West Virginia, Bluefield

March 30, 2018



          David A. Faber Senior United States District Judge

         Pending before the court is defendant's motion for judgment as a matter of law (“JMOL”) or, in the alternative, for a new trial. (ECF No. 94). For the reasons discussed below, the motion for a new trial is GRANTED in part and DENIED in part. The motion for judgment as a matter of law is DENIED.

         I. Background

         Plaintiff Hafco Foundry and Machine Company, Inc. (“Hafco”) filed the instant action for patent infringement on December 15, 2015. Hafco owns the patent for a Rock Dust Blower, U.S. Design Patent No. D681, 684S. In 2014, Hafco entered into an agreement with Pioneer Conveyor, an affiliate of GMS Mine Repair and Maintenance, Inc. (“GMS”), by which Pioneer Conveyor was to distribute Hafco rock dust blowers to mining customers. The distribution agreement between Hafco and Pioneer Conveyor was terminated in or around April or May 2015. According to Hafco, following termination of the aforementioned distribution agreement, GMS began selling infringing rock dust blowers within the Southern District of West Virginia. GMS, on the other hand, contends that its rock dust blower did not infringe the ‘684 design patent.

         Trial of this matter began on May 15, 2017. After a three-day trial, the jury returned a verdict finding that GMS had infringed Hafco's `684 patent and that the infringement was willful. The jury awarded Hafco damages in the amount of $123, 650. On May 18, 2017, the court entered judgment in plaintiff's favor in the amount of $123, 650. The instant motion followed.

         II. Standard of Review

         The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over an appeal from a final decision of a district court when the action “arise[s] under the patent laws.” Biotechnology Indus. Org. v. Dist. of Columbia, 496 F.3d 1362, 1367 (Fed. Cir. 2007) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 807 (1988)). The law of the regional circuit controls the standard of review for the denial of a motion for JMOL and a motion for a new trial. Wordtech Sys., Inc. v. Integrated Networks Solutions, Inc., 609 F.3d 1308, 1312 (Fed. Cir. 2010); see also AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed. Cir. 2014) (“In patent appeals, we apply the law of the regional circuit to which the district court appeals normally lie, unless the issue pertains to or is unique to patent law.”) (internal quotation and citation omitted).

         Once a jury has returned its verdict, there are limited circumstances that allow the court to overturn it. The same standard applicable to a motion for summary judgment controls the analysis of a Rule 50(b) motion. Dennis v. Columbia Colleton Med. Ctr., Inc. et al., 290 F.3d 639, 644 (4th Cir. 2002). “[W]hen a jury has returned a verdict, the district court may grant a Rule 50(b) motion for judgment as a matter of law only if, `viewing the evidence in a light most favorable to the non-moving party (and in support of the jury's verdict) and drawing every legitimate inference in that party's favor, the only conclusion a reasonable jury could have reached is one in favor of the moving party.'” Pitrolo v. Cnty. of Buncombe, No. 09-2051, 407 Fed.Appx. 657, at *1 (4th Cir. 2011) (quoting Int'l Ground Transp. Inc. v. Mayor & City Council of Ocean City, 475 F.3d 214, 218-19 (4th Cir. 2007)) (unpublished). Essentially, if a reasonable jury could only rule in favor of defendant, the court should grant its motion, but if reasonable minds could differ, the court must affirm the jury's verdict. See Dennis, 290 F.3d at 645 (citing Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998)). In analyzing defendant's motion, the court must draw all reasonable inferences in plaintiff's favor but may not weigh the evidence or assess the credibility of the witnesses. See id. (citing Baynard v. Malone, 268 F.3d 228, 234 (4th Cir. 2001)).

         A similar set of strictures apply to the court's consideration of a motion under Rule 59. Pursuant to Federal Rule of Civil Procedure 59, a court may “on motion grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” According to our court of appeals, a new trial is warranted when (1) “the verdict is against the clear weight of the evidence;” (2) the verdict “is based upon evidence which is false;” or (3) the verdict “will result in a miscarriage of justice.” McFeeley v. Jackson Street Entertainment, LLC, 825 F.3d 235, 247 (4th Cir. 2016) (quoting Buckley v. Mukasey, 538 F.3d 306, 317 (4th Cir. 2008)). “The grant or denial of a motion for a new trial is entrusted to the sound discretion of the district court and will be reversed on appeal only upon a showing of abuse of discretion.” Bennett v. Fairfax Cnty., 432 F.Supp.2d 596, 599 (E.D. Va. 2006).

         III. Analysis

         GMS contends that it is entitled to JMOL and/or a new trial for several reasons. First, GMS argues that court erred in excusing for cause prospective jurors with ties to Massey Energy and/or Alpha Natural Resources (collectively “Massey”). GMS also contends that a new trial is warranted because of alleged improprieties in Hafco's closing argument and errors in the court's instructions to the jury. In addition, GMS contends that there was insufficient evidence to support the jury's verdict as to liability and that the court erred in not allowing GMS to introduce evidence regarding patent invalidity. Finally, GMS argues that the damage award of $123, 650 was not supported by the evidence. The court takes each in turn.

         A. Alleged errors in jury selection.

         GMS argues that it was denied its right to a fair trial and impartial jury because prospective jurors associated with Massey Energy Company (“Massey”) were improperly excused.

         On April 5, 2010, an explosion occurred at the Upper Big Branch Mine (“UBB”) in Raleigh County, West Virginia, in which twenty-nine (29) coal miners tragically perished. See United States v. Blankenship, 846 F.3d 663, 666 (4th Cir. 2017). Massey owned and operated the Upper Big Branch mine. See id. Although vigorously disputed by Massey, investigators pointed to inadequate rock dusting as one of the causes of the explosion at UBB.[1] See In re Massey Energy Co. Sec. Litig., 883 F.Supp.2d 597, 605 (S.D. W.Va. 2012).

         Counsel for Hafco, Andrew Fusco, represented a number of employees involved in or associated with the Upper Big Branch explosion in various lawsuits. During voir dire, Hafco moved to excuse those jurors with ties to Massey and/or Alpha Natural Resources (“Alpha”).[2] Although those prospective jurors indicated that they did not know Mr. Fusco and that they could nevertheless be fair and impartial, Hafco maintained that, given the extensive publicity surrounding the UBB explosion and the negative public opinion regarding Massey, those jurors should be excused for cause.[3] Although the court was initially inclined to do individual follow-up questioning with each of these prospective jurors, the court determined that such questioning would ultimately taint the prospective jurors. The court granted Hafco's motion and excused Jurors 21, 26, 27, and 37 for cause. The court explained to the parties that only one of the veniremen stricken for cause had any possibility of serving on the jury given the order in which the jurors were seated and the manner in which the court allowed the parties to exercise their peremptory challenges.[4]

         “It is the settled law of this circuit that a district judge retains `a very broad discretion in deciding whether to excuse a juror for cause and his decision will not be overturned except for manifest abuse of that discretion.'” United States v. Turner, 389 F.3d 111, 115 (4th Cir. 2004) (quoting Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989)).

An abuse of discretion can be found in either of two ways. First, a district court abuses its discretion if it ignores a per se rule of disqualification after counsel moves to exclude a venireman. Second, if the court demonstrates a clear disregard for the “actual bias” of an individual venireman, reversal is justified.


         “The decision whether to exclude prospective jurors . . . should be made in each instance on the particular facts involved and under the established principles governing excuse for cause.” Poynter, 874 F.2d at 222. “The decision of a trial judge to dismiss a juror for cause is given deference.” Shabazz v. Hall, No. 12-CV-50355, 2015 WL 4561272, *4 (N.D. Ill. July 29, 2015); see also Patton v. Yount, 467 U.S. 1025, 1038 (1984) (noting that a trial court's evaluation of a juror is entitled to “special deference”); United States v. McCarthy, 961 F.2d 972, 976 (7th Cir. 1992) (“There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury.”) (internal quotation and citations omitted).

         GMS failed to demonstrate any prejudice it suffered because Juror No. 21 was excused for cause. “Our standard of review mandates that a trial court's decision to strike a juror for cause be reversed only where a defendant can show actual prejudice.” Cravens v. Smith, 610 F.3d 1019, 1031 (8th Cir. 2010) (holding that district court did not abuse its discretion in striking two jurors for cause, in part because movant was unable to show “actual prejudice” by the court's decision). First, the parties were given three additional peremptory strikes per side. It is almost certain that Hafco would have used one of its peremptory strikes on Juror Number 21 if the court had not stricken him for cause. Therefore, GMS can only speculate that Juror No. 21 would have been empaneled but for the court's excusing him for cause. Further, GMS does not argue that any juror who actually decided this case was unqualified or biased. See United States v. Jensen, 41 F.3d 946, 960 (5th Cir. 1994) (holding that district court's sua sponte dismissal of prospective juror was not reversible error where movant did not contend that any member of empaneled jury was biased); Shabazz, 2015 WL 4561272, at *7 (“[D]espite Plaintiff arguing that he `would have likely exercised his last peremptory challenge on the final juror' he cannot show any harm in the form of an unqualified or partial juror who actually decided the case. . . . He is asking the Court to grant a new trial in the absence of harm.”).

         Finally, GMS's argument that excusing Juror No. 21 for cause “eliminated virtually every member of the jury panel who had any significant connection to the coal industry, [5] except one potential juror whom Plaintiff subsequently got rid of with one of its peremptory strikes[, ]” see ECF No. 94 at p.2, does not ring true. During voir dire, the following veniremen testified as follows:

• Juror No. 4 indicated that her husband was a former mine worker.
• Juror No. 5 indicated that her stepfather worked in the coal mines for Massey/Alpha.
• Juror No. 7 stated that her husband was a retired coal miner and that both her son and stepson were coal miners (who had previously worked for Alpha).
• Juror No. 9 was a coal miner and testified that he had used rock dust blowers in his work.
• Juror No. 12 stated that most of his wife's family worked in mines or were associated with mining and that he had rock dusted in the past.
• Juror No. 15 testified that her grandfather was a coal miner.
• Juror No. 16 indicated that her uncle worked in coal mines for years.
• Juror No. 17 indicated that his grandfather was a state mine inspector.
• Juror No. 18 indicated that her father did surface mining for approximately 25 years and her grandfather was ...

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