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).