Thursday, October 16, 2014

More Speculative Damages Expert Testimony Permitted In Light of Limited Underlying Evidence

The court denied both parties' motions to exclude testimony from their damages experts. "[T]he Court acknowledges that [plaintiff's damages expert's] testimony contains a greater degree of speculation than might ordinarily be required to pass muster under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rule 702, Fed. R. Ev. This, however, is a function of the limited nature of the underlying evidence available in this case to construct the hypothetical bargain required by patent law. Under these circumstances, the flexibility inherent in Daubert permits the Court to accept testimony that is more speculative than would ordinarily be desirable. Nonetheless, this ruling is made without prejudice to defendants' renewing their motion to strike [the expert's] testimony if, after he has testified before the jury and been subject to full cross-examination, it turns out that his opinions are even more speculative in nature than they appeared at the Daubert hearing."

ADREA, LLC v. Barnes & Noble, Inc. et al, 1-13-cv-04137 (NYSD October 14, 2014, Order) (Rakoff, J.)

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