Motion to Exclude Nonretained Experts Granted in Part

Plaintiffs listed a couple dozen medical providers and treating docs in this FTCA case arising out of a collision with a post office truck. The Government thought that was too many and what was there was thin as an airmail envelope. Judge Mazzant agreed in part, striking the unnamed medical providers and custodians of records, and requiring that the named providers be disclosed in more detail. The order is a useful one for the standards for designating nonretained experts, as well as when an expert may be added.

Motion to Exclude Damages Expert Granted

Magistrate Judge Lane granted the motion as to the plaintiff’s damages expert, applying the recently amended FRE 702, which requires that the proponent bear the burden of showing the expert testimony more likely than not complies with the rule. He concluded that the plaintiff’s expert was improperly using sales of products which were not accused of infringement as the royalty base to determine damages, rejecting the expert’s opinion, which relied on the premise that because the accused features allowed Microsoft to achieve more of a specific, albeit unaccused feature on a server, that the accused features could be valued based on the amount of a specified unaccused feature on the network.

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.

Motions to Strike Experts & Lawyers Incorporating By Reference

Judge Payne granted parts of both motions to strike the plaintiff’s experts. Of particular interest is the Court’s striking of certain theories in the expert’s report, agreeing that they were not sufficiently disclosed in the plaintiff’s infringement contentions or “entirely conclusory with no analysis”, as well as its discussion of certain briefing tactics.

Another Omnibus Pretrial Order

Last week’s Sable v. Cloudflare omnibus order with pretrial rulings was so popular, let’s try another one. This week’s is in Flypsi v. Google, and includes the plaintiff going 0-5 on its SJ and expert motions, and Google topping it, going 0-8 on theirs, with one small asterisk (don’t go into Google’s total advertising revenue).