Damages Expert May Consider Litigation Outcome Statistics

The court denied defendant's motion to exclude the opinion of plaintiff's damages expert to the extent it was based on patent litigation outcome statistics. "The expert's] opinions concerning patent litigation outcomes are admissible. . . . [Defendant] contends that [the expert] 'discloses these statements so that [plaintiff] can wave them around at trial in an attempt to persuade the jury to find comfort in determining liability and awarding a large damages number.' [Plaintiff] responds that the studies support [the expert's] opinion that a hypothetical negotiation, which assumes that the patent is valid and infringed, supports a higher royalty than negotiations before such a finding. The data concerning litigation outcomes is sufficiently tied to the issue of how real-world licenses should be understood in the hypothetical negotiation context. [Defendant] has not shown that the opinion is unreliable, or that the potential for prejudice outweighs its probative value."

NetAirus Technologies, LLC v. Apple Inc., 2-10-cv-03257 (CACD October 23, 2013, Order) (Kronstadt, J.).