NanoChem Solutions, Inc. v. Global Green Products, LLC, No. 10 C 5686, 2013 WL 4820756 (N.D. Ill. Sept. 10, 2013).
Even though the Plaintiff in NanoChem waited until its response to a motion in limine to disclose its damages calculation without using a damages expert, the district court was willing to allow it to proceed. Plaintiff’s timely production of the documents underlying the damages calculation saved the day.
Defendant moved in limine to bar evidence of damages, arguing Plaintiff failed to adequately disclose and supplement its damages calculations. Id. at *1. In response, Plaintiff disclosed for the first time a calculation of damages based solely on lost profits. Id.
Defendant argued the disclosure was too late, without supporting documentation, and was based on a legally deficient method. Id.
In granting the motion in part and denying the motion in part, the district court said:
- Plaintiff previously said it would seek damages based on a reasonable royalty. Having disclosed a damages calculation based on lost profits, it would be limited to seeking damages consistent with that disclosure. Id.
- Defendants were not prejudiced by the late disclosure of the damages calculation. All of the evidence supporting the calculation had been disclosed, Defendant had an opportunity to seek discovery, and yet had not filed a motion to compel. But, Plaintiff would be limited to the documents produced during discovery to prove its damages at trial. Id. at *2.
- Defendant’s argument that it had been waiting to depose Plaintiff’s damages expert didn’t fly because no expert was called. The underlying evidence was considered distinct from the expert’s analysis. Id.
- The method used to calculate damages was not flawed because Plaintiff was not precluded from applying the proper method for calculation of damages to evidence disclosed at trial. Id.