AVM Tech., LLC v. Intel Corp., No. 10-610-RGA (D. Del. Mar. 28, 2013).
AVM Tech teaches us to prepare and timely submit a well-founded damages theory. In AVM, Plaintiff’s failure to submit a timely report (after four tries) left it without a damages theory and ultimately without a case.
The district court entered judgment in favor of Defendant when Plaintiff’s damages proffers were deemed “untimely and prejudicial.” Slip op. id. at 3. Plaintiff tried four times to provide a theory of damages in response to Defendant’s motion for summary judgment of no damages. The latest offer came after the date originally scheduled for a trial. But the trial was cancelled because Plaintiff had no evidence of damages. Slip op. id. at 2. Thus, the proposed expert testimony of damages was both untimely and prejudicial and would be excluded. Slip op. id. at 3.