McDavId, Inc. v. Nike USA, Inc., No. 08 C 6584, 2013 WL 1749805 (N.D. Ill. April 23, 2013).
A damages expert’s belated attempt to retreat from a flawed EMVR analysis was blocked by the McDavid court. Deciding the theory was produced too late, the court declined to let the expert retreat from his original report.
Nike moved to strike portions of a supplemental report submitted by James McGovern, McDavid’s damages expert. Id. at *1.
- EMVR – McGovern initially used the entire market value of the accused products in his royalty base. Apparently recognizing this mistake, his new alternative theory of damages attempted to apportion the value of sales between infringing and noninfringing features of the accused products. Id. at *1. The court concluded the change was untimely, rejecting McDavid’s arguments that (1) the change was the result of new sales data, (2) the change was the result of new Federal Circuit cases (in particular Judge Michel’s statement in Lucent regarding the relationship between the rate and base that was subsequently clarified in Uniloc), and (3) allowing the change would prejudice Nike. Id. at *3-*5.
- License Agreements – The court allowed McGovern to rely on a new license agreement first available after the expert’s initial report, concluding that issues relating to the licenses could be tested on cross examination. Id. at *5.
- Long-Available Evidence – Without ruling on its admissibility, the court declined to strike evidence from the supplemental report that had been available for years. Id. at *5. The new evidence did not amount to a new theory and much of the new evidence originated from Nike. Id.