Ravo et al v. Covidien PLC, 2-11-cv-01637 (PAWD October 24, 2014, Order) (Conti, J.)
Tuesday, October 28, 2014
Damages Expert May Not Testify From Memory Concerning Past Transactions Without Producing Documentation
The court granted defendant's motion to exclude the testimony of plaintiff's expert regarding a reasonable royalty because his opinion was based on licenses not produced in discovery and the expert was not permitted to testify about the unproduced licenses from memory. "[I]t is undisputed that [plaintiff's expert] is unable to produce copies of the 'Swiss' and 'Italian' licenses referenced in paragraph 55 of his expert report, or any other licenses to which he more generally refers. . . . [The expert] seeks to testify about the royalty rates paid, or being paid, by certain third-parties, but is unable to produce copies of the licensing agreements to which he refers. . . . [Plaintiff] presents no authority to this court that would allow [its expert] to testify about the terms of the 'Swiss' and 'Italian' licenses without producing copies of them to [defendant], in contravention of the general rule that all supporting facts and data be produced with the expert report."