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 October 23, 2013, Judge Kronstadt in the Central District of California issued an opinion in NetAirus Technologies, LLC v. Apple, Inc., No. LA CV10-03257 JAK, addressing a Daubert motion filed by Apple to exclude the surveys, expert reports, and opinions of the plaintiff’s survey experts (Howard Marylander and James Berger) and references to the same evidence by the plaintiff’s damages expert (Joseph Gemini). The Court granted-in-part Apple’s motion.
On April 4, 2011, Judge Davis of the EDTX issued a 44-page JMOL opinion in Mirror Worlds, LLC v. Apple, Inc., Case NO. 6:08 CV 88, in which Judge Davis wiped-out a $625M verdict against Apple. The Judge found no direct infringement on 2 patents and no doctrine of equivalents infringement on the 3rd.
The opinion includes a lengthy discussion of damages. Topics addressed include:
- Georgia Pacific analysis for reasonable royalty
- Entire market value rule
- Consumer surveys
- Royalty base
- Royalty rate