Tuesday, March 9, 2010

Lost Profits Expert Need Not Speculate As To Possible Noninfringing Alternatives

In denying defendant's motion to preclude the expert testimony of plaintiff's lost profits damages expert, Brian Napper, the court rejected defendant's argument that "the premium ball market (more than $30 per dozen) used by Mr. Napper for his lost profits analysis does not account for what 'all Pro VI users [would] play in the absence of that ball.'" "[A]ccording to [defendant], Mr. Napper does not assess what [defendant] would have offered in 2001 if the Pro VI were not available, how the market would have responded to these offerings, or what the market might have looked like in 2003 had [defendant] withdrawn the Pro VI from the market. . . . To credibly demonstrate that [defendant] would have had viable, non-infringing alternatives to offer in 2001 - as well as to predict how the market would have responded to these alternatives by 2003 - is an exercise that may be appropriate, but certainly is not one that is mandatory in light of its speculative nature."

Callaway Golf Company v. Acushnet Company, 1-06-cv-00091 (DED March 3, 2010, Memorandum Opinion) (Robinson, J.).

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