Damages Expert May Not Testify From Memory Concerning Past Transactions Without Producing Documentation

The court granted defendant's motion to exclude the testimony of plaintiff's expert regarding a reasonable royalty because his opinion was based on licenses not produced in discovery and the expert was not permitted to testify about the unproduced licenses from memory. "[I]t is undisputed that [plaintiff's expert] is unable to produce copies of the 'Swiss' and 'Italian' licenses referenced in paragraph 55 of his expert report, or any other licenses to which he more generally refers. . . . [The expert] seeks to testify about the royalty rates paid, or being paid, by certain third-parties, but is unable to produce copies of the licensing agreements to which he refers. . . . [Plaintiff] presents no authority to this court that would allow [its expert] to testify about the terms of the 'Swiss' and 'Italian' licenses without producing copies of them to [defendant], in contravention of the general rule that all supporting facts and data be produced with the expert report."

Ravo et al v. Covidien PLC, 2-11-cv-01637 (PAWD October 24, 2014, Order) (Conti, J.)