A Blog About Intellectual Property Litigation and the District of Delaware

"Our data is still data, much like this car is technically still a car." Robert Bagramov, Unsplash

On Friday, the Court issued an opinion rejecting a Daubert motion where the expert relied on third-party data to calculate damages, even though arguably better data was available from the parties.

I don't think there is anything particularly surprising about this ruling, but it's concisely put and a good reminder of a basic fact of expert reports: expert's don't have to use the best data, they only have to have "good grounds":

Defendants do not challenge the methodology that [plaintiff's expert] Ms. Bennis employs, but rather assert that the bases of that methodology are so far removed from the case as to render it unreliable. . . . They argue that better data was available, and Ms. Bennis declined to seek it out. Rule 702, however, does not require an expert to use the best data, so long as there are “good grounds” for using the data on which they base their opinion. . . . Here, [in an unfair competition case,] the majority of the employees at issue were allegedly poached between 2019 and 2023 (thirteen of nineteen). Ms. Bennis also submits, and Defendants’ attorneys argue, that the KPMG report on RFMi opines on data for the industry, rather than for an individual company. . . . Had Ms. Bennis merely based her testimony on an undated and generalized source, or on data without a reasonable relation to the time period in question, it would have insufficient “fit” with the facts of the case. Here, however, Ms. Bennis’ opinions are based on data developed by a third-party assessing, in part, an industry field, and are timely given the range of alleged acts at issue. As such, whether she relied on the “best” data is a question for the jury, and challenges to her foundation are properly raised on cross. . . . Defendants’ Motion to Exclude is therefore DENIED.

Worvo, Inc. v. Akoustis Technologies, Inc., C.A. No. 21-1417-JPM (D. Del. Apr. 3, 2023).

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