Pawelko v. Hasbro, Inc.
In trade secrets dispute, court denies defendant’s Daubert motion, finding exclusion of opposing damages expert testimony for failure to apportion is premature; whether or not entire market value rule applies is determination for jury “after hearing all the documentary and testimonial evidence.”
Parties fight over notes-containing expert report: draft or final version?
Several sessions at the recent AICPA conference in Las Vegas highlighted the importance of expert discovery in litigation and noted that draft reports continue to be a hot-button issue.
County of Maricopa v. Office Depot Inc.
In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.
Expert Report Containing Notes Qualifies as Draft Not Subject to Discovery
In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.
Cline v. Sunoco
In class-certification context, court says plaintiff’s damages expert meets Rule 702/Daubert requirements as they apply in early stage of litigation; expert is qualified, and, damages model, even if not fully developed, provides a sufficiently reliable way to calculate damages on classwide basis.
Expert Testimony Offered at Class-Certification Stage Survives Daubert Challenge
In class-certification context, court says plaintiff’s damages expert meets Rule 702/Daubert requirements as they apply in early stage of litigation; expert is qualified, and, damages model, even if not fully developed, provides a sufficiently reliable way to calculate damages on classwide basis.
Daubert Rulings Reflect Courts’ Disparate Views on Gatekeeping Role
As several recent court decisions show, different judges interpret the gatekeeping role, which they assume under Rule 702 and Daubert, very differently. Some courts take a liberal approach while others favor close scrutiny of the expert’s qualifications and proposed opinion.
Recent Daubert rulings show courts’ different takes on the role of gatekeeper
A series of recent Daubert cases illustrate how different courts may interpret the role of “gatekeeper,” which they perform under Rule 702 and Daubert.
Court Admits Unjust Enrichment Damages Based on Profit Projections
In Daubert case centering on misappropriation of trade secrets, court says plaintiff expert’s valuation of trade secrets based on defense projections of sales and profits derived from offending product is admissible; defendant failed to show this approach to determine asset’s value is improper.
Grove US LLC v. Sany America Inc.
In Daubert case centering on misappropriation of trade secrets, court says plaintiff expert’s valuation of trade secrets based on defense projections of sales and profits derived from offending product is admissible; defendant failed to show this approach to determine asset’s value is improper.
Colvin v. Syrian Arab Republic
In wrongful death suit arising from extrajudicial killing of famed war correspondent, court credits plaintiff expert’s “reasonable estimate” of loss of prospective income and benefits but finds expert failed to offset amount by consumption costs; court asks for updated expert report.
Court Awards Loss of Income Damages Related to Acclaimed War Correspondent’s Killing
In wrongful death suit arising from extrajudicial killing of famed war correspondent, court credits plaintiff expert’s “reasonable estimate” of loss of prospective income and benefits but finds expert failed to offset amount by consumption costs; court asks for updated expert report.
In Gatekeeper Role, Court Trains Attention on Expert Methodology, Not Conclusions
In ESOP case pivoting on valuation, court denies parties’ Daubert challenges; court notes “gatekeeping” means focusing “on principles and methodology, not the conclusions that [the experts] generate”; parties’ objections are mostly quarrels with opposing expert’s conclusions, court finds.
Acosta v. Wilmington Trust, N.A. (I) (Graphite)
In ESOP case pivoting on valuation, court denies parties’ Daubert challenges; court notes “gatekeeping” means focusing “on principles and methodology, not the conclusions that [the experts] generate”; parties’ objections are mostly quarrels with opposing expert’s conclusions, court finds.
Court Says Daubert’s ‘Gatekeeper’ Role Favors Inclusion, Not Exclusion
In contract and tort case, court declines to exclude plaintiff’s damages expert, noting court’s gatekeeping function “is not a role that emphasizes exclusion of expert testimony”; expert’s background in economics and business valuation experience qualified him to value subject company.
Ferraro v. Convercent, Inc.
In contract and tort case, court declines to exclude plaintiff’s damages expert, noting court’s gatekeeping function “is not a role that emphasizes exclusion of expert testimony”; expert’s background in economics and business valuation experience qualified him to value subject company.
Failure to explain inputs gets expert excluded under Daubert
If more proof is necessary to show that courts across all legal fields dive deep into the details of valuation testimony, a recent damages case that arose in the context of a condemnation proceeding should do the trick.
Enplas Display Device Corp. v. Seoul Semiconductor Co.
Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.
Federal Circuit Majority Says ‘Premium’ License Calculation Includes Noninfringing Products
Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.
Expert’s inability to defend income analysis ‘is decidedly troubling,’ court says
Judges are alert to incongruities in valuations, as is clear from a recent condemnation case in which landowners hired three experts to calculate the compensation owed to them.
Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses
Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.
Bio Rad Labs. v. 10X Genomics, Inc. (II)
Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.
Meridian Mfg. v. C&B Mfg.
Court admits expert opinion that reasonable royalty cannot exceed cost of developing noninfringing alternative because opinion is based on facts of the case; court excludes opposing expert’s royalty because he failed to assess comparability of selected licenses to patented technology.
Underdeveloped Comparability Analysis Means Exclusion of Reasonable Royalty Opinion
Court admits expert opinion that reasonable royalty cannot exceed cost of developing noninfringing alternative because opinion is based on facts of the case; court excludes opposing expert’s royalty because he failed to assess comparability of selected licenses to patented technology.
Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses
Court finds plaintiff expert’s lost profits calculation regarding two-supplier market is inadmissible and rejects reasonable royalty to the extent expert failed to explain how apportionment in benchmark licenses relates to expert’s hypothetical license.