St. Clair Intellectual Property Consultants, Inc. v. Acer, Inc., Nos. 09-354-LPs, 10-282-LPS, 2013 WL 1298517 (D. Del. March 29, 2013).
In St. Clair, a broad-based Daubert challenge to every damages expert backfired. The moral of this story – only file motions you believe you can win. You’re not fooling anyone by fighting every battle in a motion. Don’t waste the court’s time and your client’s money challenging every opinion of every expert on every possible damage issue. Plus, it’s more fun to disembowel the cad during cross examination at trial!
The parties filed cross Daubert motions. Denying the motions, the court observed that:
Generally, when on the offensive, each side argues that the opposing sides’ expert has been so deficient in his or her analysis as to be unreliable, and therefore utterly unhelpful to the fact finder. When on the defensive, however, the very same party generally insists that all of the opposing criticisms of its expert go to the weight, rather than admissibility, of the proposed expert testimony and merely provide a proper basis for cross examination. . . . [T]he court agrees with each sides’ defensive posture and will deny the Daubert motions.” Id. at *1.
The court denied Plaintiff’s Daubert motion seeking to limit the testimony of Defendant’s damages expert, John Jarosz. Plaintiff objected to his use of a single negotiation date, lump sum royalty rate, non-infringing alternatives and their associated cost, use of Georgia-Pacific factors and market transactions. But, the objections all went to the weight of the evidence, not its admissibility. Id. at *2. The court reached the same conclusion on several other damages experts. Id.