United States District Court, D. Nebraska
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
pretrial conference was held on the 16th day of October 2018.
Appearing for the parties as counsel were:
For Plaintiff Exmark: J. Derek Vandenburgh, Joseph W.
Winkels, Jill Robb Ackerman
For Defendant Briggs: Marc Cohn, Ken Lemke, John P.
Passarelli, Carol A. Svolos
Reservation of Rights.
light of the issues pending before or recently resolved by
the Court, including Exmark's Motion to Reaffirm the Jury
Verdict That Briggs's Infringement Was Willful
(see Filing Nos. 723, 720, 737, 748), Exmark's
Motion to Reaffirm Summary Judgment That the Asserted Claims
of the ‘863 Patent Are Not Invalid in View of the Prior
Art (see Filing Nos. 722, 719, 741, 750), and
Briggs's Motion to Exclude Certain Opinions and Testimony
from Exmark's Damages Expert Melissa Bennis (see
Filing Nos. 757, 759, 764, 774), each party reserves the
right to supplement its objections to exhibits,
identification of witnesses as either will call/may call, and
whether a witness will be made available for live testimony
at trial, until November 21, 2018.
attached Exhibit Lists. (Attachments 1 and 2)
attached Exhibit Lists contain the parties' good-faith
efforts to identify the entire universe of exhibits to be
used at trial, as well as objections to the admission of such
exhibits. Prior to November 14, 2018, each party may add up
to five (5) exhibits to its exhibit list without a showing of
good cause. Thereafter, the exhibit lists shall not be
supplemented without approval of all parties or leave of the
court, on good cause shown. The mere listing of an exhibit on
an exhibit list by a party does not mean it can be offered
into evidence by the adverse party without all necessary
evidentiary prerequisites being met.
parties have agreed that the following may be accepted as
established facts for purposes of this case only:
The parties agree that the following facts are uncontroverted
and may be read to the jury at such time(s) throughout the
trial as needed to put the uncontroverted fact in context.
1. Plaintiff Exmark Manufacturing Co., Inc. is a Nebraska
corporation with a principal place of business in Beatrice,
2. Exmark is the owner of U.S. Patent No. 5, 987, 863
(“the ‘863 patent”), which issued on
November 23, 1999. The ‘863 patent expired on November
3. Defendant Briggs & Stratton Corp. is a Wisconsin
corporation with a principal place of business in Wauwatosa,
4. Briggs makes and sells mowers under the Ferris and Snapper
Pro brand names.
5. If a document is introduced at trial having a bates number
beginning with “EXM” the document was in the
possession, custody, or control of Plaintiff Exmark.
6. If a document is introduced at trial having a bates number
beginning with “BRIGGS” the document was in the
possession, custody, or control of Defendant Briggs.
7. Briggs has manufactured and sold lawn mowers of particular
designs, including under the Ferris and Snapper Pro brands,
that infringe claim 1 of Exmark's ‘863 patent.
8. In 1999, Simplicity Manufacturing, Inc. acquired Ferris as
a wholly-owned subsidiary.
9. On July 4, 2004, Briggs acquired Simplicity. After the
acquisition, Ferris was structured as a wholly-owned