I find all of my best posts in footnotes.
They are the home seemingly idle musings about the scope of the law and arguments that might have been made in a better world.
There is a freedom in the foot.
Judge Wolson had a particularly striking footnote in his post-trial opinion in Med-El Elektromedizinisch Gerate GES.M.B.H. v. Adv. Bionics, LLC, C.A. No. 18-1530-JDW (D. Del. Oct. 2, 2024), which dealt with an important issue that I had not seen before in the district.
The plaintiff had gone to trial on both literal infringement and infringement under the doctrine of equivalents and for both induced and contributory infringement. The verdict form, however, did not differentiate between these theories and only asked whether the defendant was guilty of "indirect infringement." The jury found that the defendant had indirectly infringed.
In the JMOL briefing, the plaintiff had argued that, as long as they presented substantial evidence as to any of the possible theories (e.g., induced literal infringement, or contributory infringement under the DOE), then the general verdict should stand. The defendant did not argued the point.
In what must have come as a blow to the defendant, Judge Wolson accepted this framing of the issue, but noted that there was "some question" of whether this proposition was correct:
Because MED-EL has not addressed this issue, I will not reach it because it is “for the parties—not the court—to chart the course of the litigation.” That said, there is some question of whether AB is correct. In a criminal case, the Supreme Court has held that a general verdict of guilty did not need to be set aside “merely on the chance … that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” Griffin v. United States, 502 U.S. 46, 59-60 (1991). The Federal Circuit has predicted that the Third Circuit would apply Griffin in civil cases, but the Third Circuit has not yet done so and, even after Griffin, has expressed a different view for civil cases (albeit in dicta).
Id. at 14-15 (Internal citations omitted).
In a rare move for the blog, I looked into the cite Judge Wolson mentioned that "expressed a different view," -- see for yourself:
"Where a jury has returned a general verdict and one theory of liability is not sustained by the evidence or legally sound, the verdict cannot stand because the court cannot determine whether the jury based its verdict on an improper ground." Wilburn v. Maritrans GP Inc., 139 F.3d 350, 361 (3d Cir. 1998) (citations omitted); see also Avins v. White, 627 F.2d 637, 646 (3d Cir. 1980) (Where "[i]t is ... impossible to determine if the [**129] jury based its verdict on all" the allegedly unlawful acts "or ... on only one," then "there is the distinct possibility that if we affirm the jury's verdict, we may do so on the basis of" lawful acts.); Albergo v. Reading Co., 372 F.2d 83, 86 (3d Cir. 1966) ("Where, as here, a general verdict may rest on either of two claims — one supported by the evidence and the other not — a judgment thereon must be reversed.").
Avaya Inc., RP v. Telecom Labs, Inc., 838 F.3d 354, 409 (3d Cir. 2016).
The opinion went on to find that the plaintiff had presented sufficient evidence on literal induced infringement, but not on contributory infringement or infringement under the DOE. While this would seem to require a new trial under the reasoning in the Avaya dicta, Judge Wolson held that the plaintiff had conceded the issue by failing to argue for the Avaya standard and denied the JMOL and new trial motions.
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