A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Daubert

What Can a Patentee Do When the Court Excludes Its Damages Expert? Maybe Force the Other Side’s Damages Expert to Testify for the Patentee.

Andrew E. Russell, Oct. 29, 2021
Damages Experts

With this case, the hits just keep coming...
With this case, the hits just keep coming... Mitya Ivanov, Unsplash

What do you do when your expert's damages opinion gets excluded, the Court rules you cannot proceed based solely on the factual evidence, and you bear the burden of proof?

According to an opinion from Judge Andrews yesterday, one option is to call the other side’s expert—even if the other side otherwise refuses to put her on the stand.

This Case Again?

We've actually talked about this case, Shure Inc. v. ClearOne, Inc., C.A. No. 19-1343-RGA-CJB (D. Del.), quite a bit at this point, including defendant's efforts to use DJ jurisdiction to keep part of the case out of Delaware, and plaintiff's effort …

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Judge Andrews Strikes Last-Minute Damages Report

David M. Fry, Oct. 27, 2021
Damages Pennypack

When it comes to supplemental expert reports, how late is too late?

In a case that's set for trial next month, Judge Andrews recently addressed the parties' objections to a number of orders and R&Rs issued by Magistrate Judge Burke. In one of those orders, Judge Burke granted a motion to exclude some of the plaintiffs' damages calculations as erroneous and unreliable.

The plaintiffs objected, and in the meantime, they served a supplemental damages report attempting "[t]o correct the flawed analysis" excluded by Judge Burke.

Judge Andrews not only overruled the objections, but also found that the supplemental report was submitted too late:

The report was filed less than three weeks before trial. . . . This is …
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Damages Doc Daubert'ed! Defendants Delighted!

Nathan R. Hoeschen, Oct. 14, 2021
Daubert

The case is about microphones
Godwill Gira Mude, Unsplash

We've mentioned before that its difficult to win a Daubert motion, with the clear majority of cases finding that any issues with the expert's testimony go to the weight, rather than admissibility, and are best dealt with on cross-examination.

Judge Burke bucked that trend last week, granting a motion to exclude a damages expert's reasonable royalty calculation for failing to provide a sufficient factual foundation.

The Plaintiffs' expert in Shure Inc. v. ClearOne, Inc., C.A. No. 19-1343-RGA-CJB, D.I. 575 (D. Del. Oct. 8, 2021), based his damages calculation on the cost to the defendant of designing around the the patent in suit. He based that cost, in turn, on what the plaintiffs had spent to design around one of the defendant's patents following an earlier (and unrelated) lawsuit. In equating the costs, he had apparently relied on conversations with the plaintiffs' technical expert who had opined that the required design around here would be "more extensive," and thus, "more costly and time consuming." Id. at 2 (quoting the expert report).

Interestingly, Judge Burke took no issue with ...

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Judge Andrews Rejects 50/50 Starting Point for Hypothetical Negotiation

Jeff Castellano, Sept. 21, 2021
Daubert

Damages experts in patent infringement cases typically rely upon the Georgia-Pacific factors to guide their reasonable royalty analysis. Those factors are designed to predict the result of a hypothetical (and thus, fictional) negotiation between the parties, had the parties been willing participants in such a negotiation. But it is important to remember that the starting point for the application of the Georgia-Pacific factors must be tied to the facts of the case, like the factors themselves.

Late last week, Judge Andrews excluded a plaintiff's damages expert for his use of a 50/50 starting point for the hypothetical negotiation that was not sufficiently linked to the facts, as required by Federal Rule of Evidence 702.

The issue came to Judge Andrews...

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Court Refuses to Allow Expert to Evade Adverse Construction Via Doctrine of Equivalents

Andrew E. Russell, July 21, 2021
DOE Daubert

Yesterday, visiting Judge Bataillon excluded a patentee's expert opinion where the expert tried to use the doctrine of equivalents to skirt the Court's construction of a term.

The Court had initially rejected a preliminary injunction motion by the patentee, holding that it had failed to show a likelihood of success on infringement based on its proposed claim construction.

The patentee then proposed the same construction during claim construction before the magistrate judge, who issued an R&R rejecting it.

The patentee then objected to the R&R, but the Court adopted the construction in the R&R and again rejected the patentee's proposed construction.

Specifically, the Court held that the claims required two elements that each have a different thickness and composition: …

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Daubert Time

Nathan R. Hoeschen, July 8, 2021
Scheduling Daubert

Time
Charles Deluvio, Unsplash

Judge Noreika issued an interesting order last week that allows us to pinpoint precisely how much time she requires to consider Daubert motions.

Naturally, we already had some insight into this issue from the Judge's form scheduling orders. For non-ANDA cases (i.e. cases where the parties may file summary judgment motions), Daubert motions are due at the same time as SJ motions -- at least 4 months before the pretrial conference. See Form Scheduling Order [Patent, Non-ANDA], ¶ 8(f)(iii) (D. Del. Apr. 5, 2021) (Noreika, J.).

The form scheduling order for ANDA cases, on the other hand, gives the parties considerably more leeway, simply requiring that any Daubert motion be brought …

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Does an Expert Have to Write His Own Report?

Jeff Castellano, July 6, 2021
Expert Reports Daubert

Expert witnesses testifying in federal court are required to provide an expert report under Rule 26(a)(2). Although Rule 26 sets forth some requirements for the content of the report, it does not directly address how the report should be prepared, and in particular how much input the expert (as opposed to the party that has retained the expert, or the party's counsel) should have in preparing the report.

Some experts insist on writing their report in its entirety, while others rely heavily on counsel during the drafting and revising process. Too much reliance on others, however, can lead to a motion to exclude for violation of Rule 26's mandate that the report setting forth the expert's opinions be “prepared and signed by the witness." Judge Andrews recently resolved such a motion in TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA, finding that while the plaintiff's expert had contradicted some of the reports from his report during deposition, that did not justify...

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Judge Connolly Tosses Damages Opinion Based on CEO's Testimony

Jeff Castellano, May 11, 2021
Damages Lanham Act

In a recent Daubert ruling in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662-CFC-CJB, Judge Connolly excluded the opinion of the plaintiff's expert regarding "corrective advertising damages," in part because it was based on "vague, undocumented, and back-of-the-envelope . . . estimates" by the plaintiff's CEO. The Judge granted the defendant's motion to exclude the expert's testimony under both Rule 702 and Rule 403, indicating that not only did the expert's opinion fail to satisfy the Daubert hallmarks for admissible expert testimony, it would also confuse the jury and be prejudicial because it "would essentially place the imprimatur of an expert on [the CEO] Maag's undocumented and dubious damages calculation."

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Daubert on Defense

Nathan R. Hoeschen, April 1, 2021
Daubert

This picture of a duck is unrelated to the article
Ross Sokolovski, Unsplash

Under Judge Andrews' form scheduling order, the parties are allotted a certain number of pages for both Daubert and summary judgment briefs. Given how difficult it is to win most Daubert motions in the district, it might sometimes make sense to forego filing one in order to devote more pages to briefing a seemingly stronger SJ motion.

Yesterday, Judge Andrews gave the district a reason to rethink this strategy.

The defendants in M2M Solutions LLC v. Sierra Wireless America, Inc., C.A. No 14-1102-RGA-CJB, moved for summary judgment of non-infringement, relying largely on their expert's opinion that the devices did not practice a particular limitation. D.I. 213 at 3 (D. Del. Mar 31, 2021). The plaintiff responded by pointing to various alleged errors in the defense expert's methodology, but failed to actually file a Daubert motion to strike the opinion. See id. Judge Andrews found this failure fatal to the plaintiff's case, stating:

M2M’s objections may be the appropriate subject of a Daubert motion, but M2M does not cite any authority for the proposition that critiquing an expert’s methodology in the absence of a motion to exclude the testimony is sufficient to create a material dispute of fact.

Id. at 4.

The bit of this opinion that I find interesting is ...

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The Rare Daubert Motion That Consistently Succeeds

Nathan R. Hoeschen, March 18, 2021
Damages Daubert

Daubert motions are as tough as they are common. It seems every case spawns at least one on each side, and the vast majority are denied with the Court finding that any deficiencies in the expert's methodologies are merely grounds for exploration on cross-examination.

One type that consistently beats these odds (at least in Delaware) is directed to damages experts that attempt to use the damages figures from prior jury verdicts as starting points for a hypothetical negotiation.

Judge Andrews in particular has held a hard line on this issue as shown in his decision on Wednesday in Sprint Communications Company L.P. v. Charter Communications, Inc, C.A. No. 17-1734-RGA, D.I. 573 (D. Del. Mar. 16, 2021). …

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