Subotinic v. 1274274 Ontario Inc., No. SACV 10-01946 AG (C.D. Cal. April 9, 2013) (Dkt. No. 111).
Damages experts have to play by the rules. Short cuts simply don’t work. In Subotinic, the court tossed the damages expert’s testimony on lost profit damages when the expert failed to conduct a basic analysis of market demand for the patented product or noninfringing alternatives.
Defendant moved to exclude the testimony of Plaintiffs’ damages expert (also Plaintiffs’ infringement expert) because (1) he admitted his report did not contain a reasonable royalty analysis, and (2) his lost profits analysis was based on Defendant’s sales price rather than on Plaintiffs’ sales price. Id. at *26. The court concluded that, in the absence of reasonable royalty damages, only lost profits remained as a possible damages theory. Id. at *27. The lost profits analysis was legally insufficient because it contained no analysis of demand for the patented product and did not analyze noninfringing alternatives. Id. The expert could not testify on other theories because he was limited to what was disclosed in his report. Id.