Intellectual Property – Patent Infringement – PVPA – Expert Witness – Unreliable Method

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Holding: Where plaintiffs’ proffered expert’s opinion as to damages is based in part on his subjective opinion and in part on an academic study that does not take into account relevant economic circumstances, the witness’s opinion is unreliable.

Defendants’ motion to exclude plaintiffs’ damages expert is granted.

In his opinion on damages, plaintiffs’ proffered expert witness increased the royalty rate from the contractual seven percent to 53 percent. He based the increase not only on a theoretical “forced” licensing agreement resulting from defendant’s alleged infringement, but also on his subjective opinion of the rate necessary to account for the disgorgement of defendants’ profits. The witness acknowledged that the addition of this factor had no basis in established authority or methodology.

Further, the witness’s opinion is predominantly based on a study of a fictional centipede sod farm conducted by Louisiana State University which does not include any adjustments for relevant economic circumstances. The witness acknowledged that he had not reviewed any data concerning defendants’ operations and had not accounted for any economic circumstances relevant to centipede and production and sales during the years in which he calculated his projections.

This is one of the rare circumstances in which the proffered opinion is so flawed as to provide little help to the trier of fact. The record reflects that the witness’s opinion is not based on accepted methodology, has not been subjected to peer review or publication, and has not been generally accepted within the relevant scientific community. Furthermore, the witness’s opinion has little or no basis in the actual facts of this case. Accordingly, the court finds his opinion unreliable and, therefore excluded.