A Washington district court excluded the expert report and testimony from a damages expert because he also opined on factual issues that are for the jury to determine. In this patent infringement matter, defendant retained Keith A. Hock to provide opinions on (1) whether defendant Kett made a sale to plaintiff PacTool before a certain date and (2) PacTool’s damages.
The Court explains: “PacTool moves to exclude the opening report of Hock and related testimony regarding when and if sales were made because it is not credible, it is outside of Hock’s expertise, and it would be confusing to the jury. The Court agrees with PacTool and finds that Hock’s opening report improperly invades the province of the jury to find facts that are at issue. Hock relies on sales documents and inventory documents to conclude that Kett sold the thin blades to PacTool prior to March 6, 1997. That specific conclusion is a question of fact for the jury to determine. If the Court allowed this testimony, Hock would not be assisting the trier of fact to understand or determine a fact at issue; Hock would be providing testimony that there actually was at least one sale made. This is improper. Therefore, the Court grants PacTool’s motion to exclude the opening report and related testimony of Hock.”
This ruling appears to leave defendants with no damages opinions whatsoever. Apparently a better strategy might have been to retain different accounting experts; one to testify as to damages, and the other to address the matter of earlier sales.
Pactool International Ltd. v. Dewalt Industrial Tool Co., et. al., 3-06-cv-05367 (W.D. WA, January 4, 2012, Order) (Settle)