Thursday, November 14, 2013

Does the Exclusion of Expert Testimony Preclude Plaintiff's Damages Claim?

Yes. The court granted defendants' motion to preclude plaintiff from seeking lost profits for three of its patents after the court struck the related opinions of its damages expert. "[Plaintiff] claims that it can prove its entitlement to lost profits through a vague combination of other evidence concerning the number of [defendants'] infringing sales. . . . [A]lthough [plaintiff] contends that it previously disclosed a general theory of lost profits damages that does not rely on either expert testimony or the Panduit factors, [plaintiff] did no such thing. . . . To admit a brand new damages theory on the literal eve of trial would be grossly prejudicial to [defendant], which has never had the opportunity to take discovery on or prepare to rebut any lost profits theory other than the one presented in [plaintiff's expert's] Report. . . . Furthermore, there is a high risk that introducing this new theory, the contours of which remain murky even to the Court, will confuse the issues, mislead the jury, and waste time. . . . Nor does [plaintiff] offer any proposals by which to ensure that leaving the jury to its own devices to calculate a lost profits award will not result in a damages award that is wildly speculative or based on factors that have no place in a lost profits calculation."

Apple Inc. v. Samsung Electronics Co. Ltd., et. al., 5-11-cv-01846 (CAND November 12, 2013, Order) (Koh, J.)

No. Following the court's decision to exclude plaintiff's damages expert, the court granted plaintiff's request to call defendant's damages expert during plaintiff's case-in-chief. "[Defendant] has cited no authority to support the proposition that there is a per se rule precluding a party from relying on the testimony of an adverse party’s expert in its case-in-chief. . . . [T]he Court finds that it is appropriate to permit [plaintiff] to call [defendant's expert] in its case-in-chief. . . . [Defendant] contends that it will be 'prevent[ed] . . . from controlling the presentation of its own case' and that there is a risk that '[its expert's] testimony will be taken out of context and misunderstood by the jury.' This argument is unpersuasive. If Plaintiff’s counsel poses improper questions, [defendant] may object. And, to the extent that [defendant] is concerned about responses to proper questions, the result is not materially different than if Plaintiff were to cross-examine [defendant's expert] were he presented first as a defense witness. . . . However . . . [defendant's expert] appropriately assumed infringement in carrying out his damages analysis, and it would be improper for [plaintiff] to use that assumption to bolster its infringement case."

NetAirus Technologies, LLC v. Apple Inc., 2-10-cv-03257 (CACD November 11, 2013, Order) (Kronstadt, J.)

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