Patent Damages
15Jun/11Off

FL court refuses to strike expert report on lost profits damages; addresses two-supplier market and demand issues

On April 21, 2011, Judge Morris of the Middle District of Florida issued an opinion denying the defendant’s motion to exclude the testimony and strike the report of plaintiff’s damages expert. The court held that the expert’s report contained “sufficient research and data to indicate both reliability and relevance[,]” which “would assist the trier of fact.” Se. Metals Mfg. Co., Inc. v. Fla. Metal Products, Inc., Case No. 3:09-CV-1250 (M.D. Fla., April 21, 2011).

Defendant first argued that “[p]laintiff’s expert [made] speculative assumptions in the report related to [] the composition of the market for [p]laintiff’s product[.]” Plaintiff’s expert concluded on a two-supplier market, deciding that defendant’s and plaintiff’s products were sufficiently similar though the market included other competitors. Defendant disagreed that the two products were so similar to create a two-supplier market. Because of this disagreement, the court held that “any weaknesses in the expert’s opinion in this regard would go to its weight rather than its admissibility.”

Defendant argued secondly that the plaintiff’s expert made speculative assumptions in his report based on “[p]laintiff’s ability to meet demand if [d]efendant’s alleged infringing product were not in the marketplace[.]” Citing Martinez v. Rabbit Tanaka Corp., Ltd., No.04-61504-CIV, 2006 WL 5100536 (S.D. Fla. Jan 6,2006), Defendant claimed that the expert’s report was based on his unsupported conclusions, assumptions, and a lack of untestable data or research.  Plaintiff’s expert, in fact, based his report on plaintiff’s ability to meet “demand in 2006, a year in which Defendant’s alleged infringing product had not yet been sold[,]” because “the combined sales of Plaintiff’s and Defendant’s products were roughly equivalent to Plaintiff’s sales total in 2006[.]” In light of that reasoning, the court found that the expert’s report seemed “based on an economic analysis of both Plaintiff’s and Defendant’s financial records[.]” Thus the court held, “to the extent that Defendant argue[d] the Expert’s opinion(s) [were] unfounded, this contention would go to the weight of the evidence, rather than to its admissibility.”

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