Motion to Strike Damages Experts Denied

In the old days, before people had to figure out how Daubert is pronounced (the family in the litigation pronounces it “Dobbert”, so you can be all French and everything, but you’d be all wrong too – and I say that as a French major), experts simply said what they said, and if the expert’s opinions were that poor, the jury not only disregarded them after the expert had been destroyed on cross, but punished the rest of your case too for presuming to waste their time with such awful testimony.  Of course if your expert presenting the termite-ridden opinions was better than the lawyer cross examining them, things got interesting, but we’re not going to talk about George Greene right now.

One of the interesting things about damages testimony, specifically in patent cases, is that since the Federal Circuit has ruled certain economic calculations out as a matter of law for various reasons, the inquiry when determining whether a damages expert can testify as to an opinion at trial is not always simply that the flaws in the opinions go to the weight (with the experienced trial judge knowing that the system tends to be self-correcting because flawed opinions tend to kick harder than they shoot) but sometimes whether the opinion itself is legally impermissible under controlling caselaw.

The attached is a recent opinion out of Tyler where some of these allegations were levelled against a couple of experts, and the Court’s analysis provided hopefully some useful discussion of when flaws in the expert’s opinion fall on weight side of the scale, as opposed to admissibility. The point above – that bad opinions don’t do well at trial – may have been the lesson from this case as well.

VirnetX Postverdict Motions Analysis – JMOLs, Enhanced Damages & Attorney’s Fees

It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks.  And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL.  So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.

Expert’s Opinions v. Court’s Claims Construction

A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not.  A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.

Orders on Procedures and Evidence for Civil Contempt Proceeding

One of the EDTX cases being handled by Judge William C. Bryson of the Federal Circuit has an upcoming hearing on whether the defendant should be held in contempt for not making ordered royalty payments as to certain products following a jury verdict of trade secret misappropriation (later affirmed on appeal and cert denied). Judge Bryson recently issued a couple of orders in connection with that hearing that readers might find of interest.

EDTX court excludes plaintiff’s damages supplementation and assesses sanctions

I once was talking to a lawyer from another state about why his side kept offering a specific piece of evidence in a patent case after the judge had – repeatedly – excluded it.  He explained that where he was from, you keep offering the evidence until the judge threatens to jail you if you don’t stop. Well, we don’t do it that way here – most lawyers this way have this endearing tendency to follow court rulings once an objection is preserved, but here’s an example of a case where one side that didn’t think that was the way to go – and what followed.

Motion to Strike Expert Report Portions That Were Outside PICs Granted

Much like this photo of our twins after seeing their first Broadway show last month, there’s content here to make you both happy and sad.

First, have you ever been frustrated looking for an order to give that obnoxious partner/associate that wants to file a motion to strike something because it’s a few hours late?  Well, click through and the Court’s haiku-like resolution is yours to embrace.

The Court declines to do so.

[Defendant] has not suffered any prejudice.

But there’s substantive information in this order granting a motion to strike portions of a plaintiff’s expert report because they are different than what was in their infringement contentions that’ll put a smile on your face.

Motion to Exclude Experts’ Testimony

With trial only a few weeks away in this case, the Court ruled on Defendant’s corrected motion to exclude portions of the plaintiff’s damages and technical experts, which arguing that their opinions are insufficiently reliable under FRE 702.  The Court’s ruling on the motions sets out the relevant considerations for experts, and explains its rulings in some detail.  They also include, candidly, interesting holdings on what constitutes expert versus lay testimony, and when a defendant’s gross sales numbers might be admissible.

Motion to Bar Expert From Reviewing Confidential Information

Patent cases often involve production of confidential technical information, which is then reviewed by another party’s experts in preparation for trial.  Occasionally, an expert’s work for a competitor causes issues with determining whether the expert can review certain information.  That was the case recently in a EDTX case involving electronic products.  In that case

JMOL Rulings in Chrimar v. Alcatel-Lucent

Those who have been reading this weblog for a while know that I’ve got a thing for JMOL rulings.  They are hands down not just the most useful documents to review for a forensic understanding of what happened in a particular case, but also to learn what the requirements are for claims and defenses.

Pres. Underwood with a statue commemorating his tenure as Practice Court professor at Baylor Law School (I’m pretty sure)

My interest in JMOLs started before I even started practicing law.  In the winter of 1991 I was in my last quarter at Baylor Law School, preparing for my upcoming clerkship with Judge Hall in Marshall by interning for a federal judge in Waco and taking Federal Courts from Prof. Bill Underwood, who had just started at Baylor the prior year.  Prof. Underwood emphasized the importance of knowing the FRCPs by pronouncing that if we didn’t know the forthcoming Dec. 1, 1991 amendments to the FRCPs, we wouldn’t pass his class.  As a result, I spent the next ten years as (it seemed) the only lawyer east of Dallas that knew what the rules were on subpoena range – because they were in that batch of rule changes.

I have to mention that this was before Prof. Underwood became the Baylor Practice Court professor, a job he held before becoming Baylor’s interim president from 2005-2006, a job he did surprisingly well in.  I say “surprisingly” because it’s hard to picture a Baylor PC professor excelling in a job that doesn’t involve torturing law students.  It’s like finding out that Genghis Khan took a sabbatical from pillaging to run a successful Habitat for Humanity program.  Or a T-rex taking a break from chasing sauropods to set up a child care program for Triceratops eggs.  It’s just not expected.  I note that Professor Underwood has continued his career outside the fields of torture and despair enhancement as president of Mercer University since 2006, and I wish him well.  Again, I didn’t have him for PC, so this is easy for me to say.

Where was I?  Oh, yes, JMOLs.  Guess what else was in those Dec. 1, 1991 amendments?  The motion previously known as a “directed verdict” was renamed “judgment as a matter of law” and given a new scope.  And wouldn’t you know it, nine months later I’m minding my own business at the law clerk’s table in the courtroom in Marshall when Judge Hall grants one of these newfangled motions, sends the jury home, and promises a written order.

What came out of that 13 days later was Johnson v. Bekins Van Lines, 808 F.Supp. 545 (E.D. Tex. 1992) – one of the first reported cases using the new name and standard, and a foxhole’s-eye view as to the new rule in the most sensitive of contexts – a court deciding that the evidence was insufficient for the case to go to the jury.   I still have the advance sheet on a shelf in my office, and I’ve never stopped appreciating the unique insight that the explanations contained in JMOL rulings can provide into a case.

The most recent JMOL from the EDTX comes from Tyler, in