In a recent Memorandum Order, Judge Richard G. Andrews denied four motions by plaintiff to exclude expert testimony, and granted one in part. AVM Technologies, LLC v Intel Corp., C.A. No. 15-33-RGA (D. Del. Apr. 29, 2017). In support of two of the motions that Judge Andrews denied, plaintiff argued that the expert reports were “untimely and . . . prejudicial.” Id. at 3, 5. Judge Andrews disagreed, and noted that “[t]his is not an appropriate issue for a Daubert motion.” Id. As to one of those motions, Judge Andrews explained that “if Plaintiff suffered the severe prejudice it claims to have suffered, it should have brought this issue to my attention at the time the report was filed. The . . . report addresses a narrow issue, is only six pages long, was served prior to [the expert’s] deposition, and serves as a response to Plaintiff’s expert’s reply report.” Id. at 3. Judge Andrews provided a similar explanation for the other such motion. Id. at 5-6.
As to the motion that Judge Andrews granted in part, Judge Andrews explained that the court would exclude “testimony regarding the Hitachi litigation as it is unnecessary to an assessment as to the parties’ relative bargaining position during the hypothetical negotiation, and, as I have said elsewhere, incredibly prejudicial.” Id. at 4. Judge Andrews also excluded testimony “as to Plaintiff’s litigation funding agreements.” On this point, Judge Andrews observed:
These agreements are not patent licensing agreements and are not otherwise relevant to the hypothetical negotiation between the parties. The best that can be said about litigation funding agreements is that they are informed gambling on the outcome of litigation. They are so far removed from the hypothetical negotiation that they have no relevance. I further note that if they were determined to have some marginal relevance, that I would exclude them under Rule 403 as their probative value is more than substantially outweighed by the danger of unfair prejudice to AVM and of confusing the issues, as their introduction would just invite a sideshow on the economics of patent litigation.