Judge Richard Andrews recently granted a patent infringement defendant’s motion for summary judgment of no damages and excluded untimely and prejudicial damages testimony proffered by the plaintiff. See AVM Techs., LLC v. Intel Corp., C.A. No. 10-610-RGA, Order at 1-4 (D. Del. Mar. 29, 2013). The proffered testimony in question was the fourth damages theory offered by the plaintiff since the defendant had moved for summary judgment of no damages. It was also filed almost a month after the initially-scheduled trial date. The witness in question had not been disclosed until recently and the defendant did not have the opportunity to seek discovery into the witness’s theory or develop a response. Id. at 2.
While the plaintiff argued that any prejudice could be cured by allowing additional discovery, Judge Andrews found that this offer “ignore[d] that the only reason trial was not held on its scheduled date was that [plaintiff] had no evidence of damages [so] the trial was cancelled pursuant to [a] Joint Proposed Final Judgment Order.” Accordingly, Just Andrews explained, the plaintiff “should not be put in a better position now, having offered yet another damages theory after trial initially was set to begin.” Id. at 2-3. Additionally, the proffered testimony was “unimportant in that it is insufficient to support a provable damages theory.” And although the exclusion of the proffered testimony would leave the plaintiff with no damages evidence, “this factor is at most neutral, particularly because this situation is of [plaintiff’s] own making.” Id. at 3. Accordingly, Judge Andrews excluded the proffered testimony as untimely and prejudicial, and because plaintiff had “no evidence with which to prove damages,” granted summary judgment of no damages for the defendant. Id. at 3-4.