Train Wreck Averted – Marshall Jury Returns Verdict in Damages Retrial

The Marshall jury in Judge Gilstrap’s court returned a verdict in the G+ v. Samsung case yesterday, awarding $61 million for the infringement of the first patent and $81 million for the second – the full amount requested. That’s up from the first trial, in which they awarded $67.5 million, but in a fashion that indicated to Judge Gilstrap that they were confused over the reasonable royalty v. lump sum question, which would lead to a train wreck trying to determine whether future damages should be awarded.

Preemption Summary Judgment?

Judge Payne denied this motion for summary judgment, finding that the Plaintiff’s negligent hiring of a truck driver claims against the defendant were not preempted by federal law, and not supported by evidence. Despite finding the plaintiff’s opposition “largely unhelpful” Judge Payne nonetheless concluded that courts across the country have largely decided this issue in one of three ways: finding the preemption language of 49 U.S.C. §14501 does not cover claims of negligent hiring; the preemption language does cover such claims but the claims fall under the safety exception of §14501(c)(2); or that the preemption language covers such claims and they do not fall under the safety exception. He also found that Texas recognizes the tort of negligent hiring, including for an independent contractor and thus there was a duty for Keystone to violate, and that “Plaintiff has provided evidence that, when viewed in the light most favorable to Plaintiff, would show Keystone violated its duty by failing to vet Avnoor and that but for that violation Plaintiff would not have been injured.”

I am [in the] GROOT [Processor]

Three postverdict orders in this case dealing with JMOLs, new trials (damages,  infringement and invalidity) & interest raise somewhat intertwined issues.  What they didn’t raise was sufficient grounds for judgment as a matter of law or a new trial in derogation of the jury’s verdict.  (In this case GROOT is a processor, specification or widget of some kind that the experts felt either did or didn’t have or do something, so I’m not totally making up the reference).

Motion to Strike Expert Reports Granted (in Part)

Judge Gilstrap granted the motions in part, striking an expert’s “analysis” of a letter which provided a legal conclusion, as well as testimony regarding an interrogatory response – because the party had previously agreed it would not refer to it. The court also struck an expert’s discussion of non-infringing alternatives as untimely and ultimately irrelevant in light of the defendant’s decision to offer no damages opinion tying any non-infringing alternative to a proper damages analysis. But there was much that the court deemed admissible, so the order may be useful to practitioners trying to determine what is in and out with respect to expert testimony.

Motion to Dismiss Granted in Part

Judge Gilstrap granted the motion to dismiss the claims of direct infringement, agreeing with Defendant that Plaintiff failed to plausibly allege that the accused products meet each and every element of the two asserted claims. The court also granted the motion as to the pre-suit claims of indirect and willful infringement, but denied the motion in all other respects, and granted leave to replead.