Indemnity Agreement May be Offered to Show Willfulness

The court denied defendant's motion in limine to exclude "all testimony, argument and reference to the alleged indemnification of defendant." "Plaintiffs want to use Defendant’s indemnification by its manufacturer as proof of Defendant’s knowledge that an infringement claim was likely, which is relevant to willfulness. The indemnification agreement is not being used to infer liability, which has already been determined by the Court as to [one product] and will be determined based on the technical evidence as to the [other product]. Therefore, evidence of the indemnity is unlikely to cause the inferential leap that FRE 411 guards against. Instead, the evidence directly shows that Defendant had knowledge of the risk that it infringed the [patent]."

I-Flow LLC et al v. Progressive Medical, Inc., 8-12-cv-01064 (CACD February 21, 2014, Order) (Guilford, J.)