D. Neb. Denies JMOL, Finds Delay in Filing Suit Irrelevant to Damages

In Exmark Mfg. Co. v. Briggs & Stratton Corp., Case No. 8:10CV187 (D. Neb. April 15, 2019), Judge Joseph F. Bataillon denied Briggs' JMOL motion or in the alternative for new trial or remittitur. These were post-trial motions after a retrial on damages, in which the jury awarded damages to Exmark, which occurred after remand from the Federal Circuit—the appellate court had affirmed in part and reversed in part and remanded the case to the district court to retry damages. Exmark Mfg. Co. v. Briggs & Stratton, 879 F.3d 1332, 1348-54 (Fed. Cir. 2018). The Federal Circuit found error in the court's denial of Briggs' motion for new trial and remanded for a new trial on damages. According to the district court's order addressed here, the Federal Circuit "found no error in the Court's allowing Exmark to apportion the value of the patented improvement and conventional components of the multi-component product through the royalty base [sic, rate] rather than the royalty rate [sic, base] and approved Exmark's use of the accused lawn mower sales to as the royalty base. Id. at 1348-49." Slip op. at 1. The district court further observed that the Federal Circuit "found Exmark's damages expert Melissa Bennis's opinion was inadmissible ‘as it failed to adequately tie the expert's proposed reasonable royalty rate to the facts of the case,' stating that the expert '€˜plucked the 5% royalty rate out of nowhere.' Id. at 1350-51." Slip op. at 1-2.

On retrial, Ms. Bennis provided an additional report, and the court denied Briggs' motion to exclude her testimony. Id. at 2. The jury returned a verdict of $14.3 million, and the court doubled it based on an earlier finding of willfulness from the first trial. Id. Briggs filed post-trial motions challenging the jury's verdict.

The damages issue addressed in this post relates to Exmark's alleged delay in filing the lawsuit. On this point, the court found: "Briggs has not shown that a different result would have been likely had the jury heard evidence concerning Exmark's alleged delay in fining [sic, filing] suit. The Court sustained objections to such testimony at trial because it would lead the jury to make improper assumptions. The Court continues to find that its evidentiary rulings as to evidence of delay were correct." Slip op. at 6-7. The court observed that the Federal Circuit had affirmed the district court's finding, related to the first trial, in which the district court rejected Brigg's argument and affirmed that evidence of delay in filing suit is not relevant to damages. The district court quoted the Federal Circuit:

We agree with the district court that Briggs’ attempt to introduce evidence of Exmark’s delay in filing suit for infringement is not relevant to damages, even when considering Georgia-Pacific factors four (licensing policy) and fifteen (hypothetical negotiation). As the district court recognized, '[t]he argument that the delay in bringing suit somehow establishes Exmark’s perception of the value of its invention is specious. There are many reasons to forego filing a lawsuit, to imply that Exmark did so because it did not think the invention had value is speculative.'

Slip op. at 7 (quoting Exmark, 879 F.3d at 1352).