Damages Expert Report Stricken in Part

This is a breach of contract case arising out of the agreement to settle a patent infringement lawsuit.  The motion at issue seeks to strike the plaintiff’s damages expert from allegedly interpreting the contract, i.e. whether certain conduct constituted use, and thus a breach; and (2) because the expert relied on “cherry-picked screen shots and hearsay.”  The order provides a useful summary of the relevant standards for motions to strike experts, just in case you wanted to steal some really language for your boilerplate files, and a couple of holdings that might be worth referring to in future cases.

Analyzing willfulness claims/Section 101 denial/expert opinions excluded in part

It’s often helpful to cut something open to see how it works.  During World War II, the Navy cut open a damaged PBY Catalina flying boat and mounted it on a wall in a training facility in Pensacola to help train sailors who would be crewing its sister craft.  The cutaway PBY was a local fixture from 1944 to 1997, and was eventually moved to the nearby National Museum of Naval Aviation to sit under a fully restored version, where my youngest son Parker (who’s a certified WW II plane nut) got to study it up close.  (That I have a PBY on my work bench at the moment had nothing to do with the trip.  Honest)

Readers will recall that I posted last month that a Marshall jury in Judge Roy Payne’s court returned a verdict last month in favor of Ericsson in a case brought against TCL Communications and set damages at $75 million.  Two of the numerous pretrial rulings in that case were on the defendant’s motions for summary judgment under Section 101, and on the plaintiff’s claims of willful infringement, both of which Judge Payne denied.

Since the 101 ruling runs against the recent trend of more than half of 101 rulings going the defendant’s way, it is worth a review.  But the one I really want to focus on is the willfulness ruling because, as the Court wrote, “it is helpful to explain the standard as it stands today [post-Halo]” which began a metaphorical popping off of the fuselage panels on the standard in order to spend several pages poking around on what the wilfulness standard requires, and what factors need to be considered when deciding whether to bifurcate a willfulness claim.  When you’re done reading it, you might find yourself with the same thought I had after studying the interior of a full-size PBY – I have really not understood how this thing fits together, and I have really screwed up ….

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.