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.
This order excluding a technical expert witness in a patent case is an interesting one because it asserts several grounds, only some of which will give lawyers nightmares.
One of my favorite law-related blogs is David Coale’s 600 Camp, which follows commercial litigation in the U.S. Court of Appeals for the Fifth Circuit. I normally don’t post on appellate decisions, but this morning’s 600 Camp post on the Fifth Circuit’s recent decision in Puga v. RCX Solutions, Inc., No. 17-41282 (Feb. 1, 2019), had so many useful tidbits that I just had to. In it, the Fifth Circuit affirmed (I have to respect visuals that are as witty and insightful as my own) a substantial judgment following a jury trial in the SDTX in a case arising from a collision with a truck. The decision has useful tidbits on Rule 50 motions, objections to the jury charge, the admissibility of expert testimony and and remittitur, which involves the “disproportionality” analysis. It might even be even better than a JMOL opinion, and you know how I feel about those.
I like orders dealing with damages experts. Mainly it’s because I understand them, because they all deal with … dollars. And I recognize things like reasonable royalties and lost profits, and damages bases because I see them all the time, and they don’t change much from case to case. In short, it’s like watching American football instead of Australian rules – I’m not Tony Romo, but I can still appreciate a well-executed play, or a totally botched one. This order analyzes a motion to strike a damages expert’s royalty and lost profits opinions, and concludes that only the latter meet the standards for admissibility. In much the same way that their kicker was the only Rams player to get points on the board last night.
This is likely a personal shortcoming, but I enjoy reading orders on motions to exclude expert testimony. Order on motions to exclude damages experts are even more fun because there’s no technology involved. And orders on motions to exclude each other’s damages experts are really fun because they provide two looks from the same judicial vantage point, using the same case facts, at motions that have to overcome the same caselaw they’re simultaneously arguing for. This case presents just such a situation.