Daubert Motion: Patent Damages Hot Topics

Recent Price Elasticity Daubert Challenges

LG Electronics U.S.A., Inc. v. Whirlpool Corp.

2010 WL 339735808 (N.D. IL, 2010)

ISSUE: Whirlpool asserted that Dr. Rao failed to consider the effect that price premium on steam dryers has on consumer demand for LG's dryers. See, e.g., Tel-Lock, Inc. v. Thomson Consumer Elecs., No. 03 C 320, 2005 WL 741930, at *10 (N.D.Ill. Mar.30, 2005) (noting that the “theory of price erosion ‘must account for ... the effect of the hypothetically increased price on the likely number of sales at that price in that market’ ”). Dr. Rao, however, stated that he analyzed price elasticity during his price erosion analysis and that he concluded that the “relatively trivial change in price” would not affect consumer demand. He explained that he did not take into account price elasticity in a quantitative way in conducting the price erosion analysis because, in this case, steam is a primary feature for consumers, and they are not as price sensitive as they are feature sensitive. Therefore, according to Dr. Rao, there is no price elasticity when there is no competitor in the market, i.e., when LG is the only participant in the market selling steam dryers. But when another company enters the market, in this case Whirlpool, price elasticity becomes a relevant factor.

HOLDING:  If Whirlpool believes that Dr. Rao's analysis in this regard is in error or that it contradicts the testimony of other LG employees, Whirlpool can raise the issue on cross-examination.  Daubert, 509 U.S. at 596.

 

Sigma Tool & Mach. v. Nagayama Electronic Industry Co., Ltd.

2d2002 WL 34354482 (D. Col, 2002)

ISSUE: Sigma argues that Dr. Buzzell used average pricing, failed to account for priceelasticity, and did not consider other market factors in reaching his opinion on price erosion and lost profits.

HOLDING: Sigma's concerns go more to the weight of Dr. Buzzell's anticipated testimony than to its admissibility. The Court's role is not to determine whether an expert's testimony is correct, but only whether it falls “outside the range where experts might reasonably differ.”  Kumho, 526 U.S. at 153 (citing Daubert, 509 U.S. at 596). “In Daubert, the Supreme Court held that ‘vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Groobert v. Georgetown College, 219 F.Supp.2d 1, 6 (D.D.C.2002) (quoting Daubert, 509 U.S. at 596).

 

 

All cases reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of any case using KeyCite on Westlaw, you may do so by visiting www.westlaw.com.