District of Connecticut Declines to Exclude Survey, Finding Alleged Deficiencies Go To Weight, Not Admissibility
The District of Connecticut, in Gerber Scientific International, Inc. v. Roland DGA Corp., et al., Case No. 3:06cv2024 (Judge Covello) (June 27, 2016), denied Defendant’s Summary Judgment of No Lost Profits. Plaintiff’s damages expert presented a lost profits theory relying solely on a survey. Defendant contended that the survey was “unreliable, untrustworthy, and prejudicial.” (Slip op. at 1). The Court noted that there is a split in authority over the proper consequence for unreliable or untrustworthy survey evidence. “While some courts . . . believe such flaws are proper grounds for exclusion, others view methodological errors as affecting only the weight of the evidence.” Schering Corp. v. Pfizer, 189 F.3d 218, 225-26 (2d Cir. 1999).
While the Court agreed that “indications of unreliability and/or untrustworthiness may result in the exclusion of a survey,” the Court held that “the deficiencies alleged by [Defendant] in this case are not clearly egregious or sufficiently prejudicial to warrant exclusion at this time.” (Slip op. at 1).
On March 31, 2014, Judge Fischer of the Western District of Pennsylvania issued a 72-page opinion in Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., Case No. CV 09-290. The opinion covered a number of post-verdict damages issues, including pre-judgment and post-judgment interest, supplemental damages (for sales between the end of discovery and through trial), enhanced damages, and ongoing royalties. Of particular note are the enhanced damages and ongoing royalties issues.