ABT Systems, LLC v. Emerson Elec. Co., No. 4:11CV00374 AGF, 2013 WL 3243372 (E.D. Mo. June 26, 2013).
Don’t wait until after the jury returns a verdict to argue a stipulated sales base should be corrected. In ABT Systems, the court rejected Plaintiff’s attempt to reopen the damages case two weeks after the verdict to reconsider sales figures produced shortly before trial.
Prior to trial, the parties stipulated to the number of accused products sold subsequent to the filing of the lawsuit (the date notice of infringement was first given). Id. at *1. Two weeks after the jury returned a verdict and awarded damages, Plaintiff sought to reopen the damages case to “correct” the infringing sales base. Id.
Plaintiff argued Defendant made a late and confusing production of evidence of additional infringing sales shortly before trial. Id. Thus, Plaintiff reasoned, the damages case should be reopened.
The court denied the motion saying, “Plaintiff’s realization that they should have done things differently during trial does not provide the Court with a basis to reopen the damages case two weeks after the jury returned its verdict.” Id. at *2. The time to raise the late production was before, or even during trial, not after the verdict. Id.