Portions of the defendant’s damages and invalidity experts’ reports were ordered struck in this case, providing a good look at what is a bridge too far for an expert.
Not too long ago I posted on Judge Albright’s denial of a motion to substitute experts. He just ruled on the request to reconsider that decision. I would say, as I did recently on the SJ motion in this case, that that would give us insight into how he views motions to reconsider, but the graphic sort of gives it away.
The Rmail case – or at least part of it – apparently settled late Sunday evening, but it’s never too late to see what can be gleaned from the most recent batch of pretrial rulings on expert motions and motions in limine.
Prior to holding a hearing on seventeen dispositive motions and 62 disputed limine motions, the Court issued this order resolving seven of the motions, all addressed to expert testimony.
Another interesting case from the birthplace of Dr Pepper, which has since decamped to the Eastern District of Texas, first as part of Snapple (to Plano) and now as part of Keurig Dr Pepper (to the Star in Frisco). Anyway, this case involves a plaintiff attempting to switch damages experts midstream because of a payment dispute.
I don’t mean to sound like I don’t like these orders because I do – they’re always informative and provide a useful explanation of what precisely about a damages expert’s opinion is and is not admissible. So let’s see what this opinion can tell us about the not particularly common application of the Panduit factors relevant to claims of lost profits.
As I posted several months ago, and more recently in connection with a recent decision, last year’s EDTX rule changes included a new requirement regarding expert disclosure at the P.R. 4-3 stage. We now have a second opinion interpreting the new provision in light of a dispute that has arisen over it.
The challenge to this damages expert’s opinions was that they were not reliable, focusing on the propriety of the licenses relied upon. After reviewing the relevant standards, the Court denied the motion, but required supplemental briefing on an issue raised by the motion.
Last December General Order 18-10 made a number of changes to the EDTX local rules. A significant one was amendment of the patent local rules dealing with expert disclosures in connection with claim construction. A recent opinion applies that change and provides some new guidance on what the requirements mean.
Last month my wife emailed me from the Udvar-Hazy museum outside DC to tell me that our youngest, Parker, had turned into me – he thinks he’s an expert on every aircraft they saw and narrated his way through not one but two Smithsonian museums dedicated to air & space (note the B-17 shirt). His brother Collin’s answer to my question of what he saw at the museum that he liked the most was priceless. “The exit,” he deadpanned.
This order deals with objections to real experts based on a common complaint – that the disclosures were procedurally improper. As we all have to pass that procedural threshold to get expert testimony in at trial, it’s worth seeing what the court thought about the disclosures.