Expert Damages Testimony Based on “Nash Bargaining Solution” Excluded

The court granted defendant's motion to exclude the testimony of plaintiff's damages expert which was based on the Nash Bargaining Solution. "[T]he hypothetical negotiation conducted by [plaintiff's expert], based on the Nash Bargaining Solution, does not appear to be tied to the facts of this case. . . . [His] opinion is, in essence, (i) the application of Georgia-Pacific factors, followed by (ii) the application of a 50/50 split, derived from the NBS. Put simply, [his] damages opinion is not meaningfully distinguishable from the [25% rule of thumb] damages opinion rejected in [Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)]. . . . [He] does not explain why these parties would have accepted a 50/50 split. Thus, the '50/50 split' is plainly not tied to the facts of this case and is essentially no different from the 25% rule of thumb rejected in Uniloc."

Suffolk Technologies, LLC v. AOL, Inc., et. al., 1-12-cv-00625 (VAED April 12, 2013, Order) (Ellis, J.).