United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Briggs and Stratton
Corporation's (“Briggs”) motion for judgment
as a matter of law, or in the alternative, remittitur, or for
a new trial, Filing No. 938. This is an action for patent
infringement that was remanded to this court for a retrial on
damages after the United States Court of Appeals for the
Federal Circuit (“Federal Circuit”) affirmed in
part and reversed in part. See Exmark Mfg. Co. v. Briggs
& Stratton Power Products Group, LLC, 879 F.3d 1332,
1348-54 (8th Cir. 2018).
appeal after the first trial, the Appeals Court found error
in the Court's denial of Briggs's motion for a new
trial and remanded for a new trial on damages. Id.
at 1351. It found no error in the Court's allowing Exmark
to apportion the value of the patented improvement and
conventional components of the multicomponent product through
the royalty base rather than the royalty rate and approved
Exmark's use of the accused lawn mower sales to as the
royalty base. Id. at 1348-49. However, the Court
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. On retrial, Bennis provided an
additional report and this Court denied Briggs's motion
to exclude her testimony. Filing No. 801, Memorandum and
Order. The jury returned a verdict of $14, 380, 062. Filing
No. 914. Having found the earlier finding of willfulness in
the first trial could stand, the Court awarded that same
amount in punitive damages, doubling the award. Filing No.
868, Memorandum and Order; Filing No. 920, Order.
challenges the jury's damages award. It seeks either a
judgment as a matter of law that Exmark is entitled to zero
damages or a new trial on damages. It contends that the
jury's verdict in the amount of $14.4 million is flawed
for several reasons and argues post-trial relief in
Briggs's favor is required. Briggs argues that the jury
did not have evidence of legally sufficient grounds on which
to base its finding that Exmark proved, by a preponderance of
the evidence, the amount of reasonable royalty damages. In
particular, it argues that Exmark failed to present evidence
of the value of the patented baffle shape; Exmark's
damages expert, Melissa Bennis's apportionment
methodology was arbitrary, unreliable, and not tied to the
facts of the case; Exmark relied on a settlement agreement in
connection with the hypothetical negotiation that is
irrelevant and was the product of litigation; Exmark did not
tie profits allegedly lost from Brickman, Ruppert, and
TruGreen to the hypothetical negotiation in 1999; and Exmark
ignored operating profits and instead used revenues to
calculate its reasonable royalty damages. Alternatively,
Briggs argues the Court should order remittitur to the amount
of $150, 000, which represents the cost approach damages
calculation presented by Briggs's damages expert, John
argues that it presented more than substantial evidence in
support of the value of its patented technology. Further, it
contends that its expert's methodology was appropriate
and argues that Briggs's challenge should be rejected for
the same reasons the Court denied Exmark's
Daubert motion. It also contends that evidence
regarding Brickman and other examples of actual competition
was appropriate. Further, it argues that Ms. Bennis
specifically explained how late-2000s examples of direct
competition were related to the hypothetical negotiation and
states that Briggs waived any argument that Ms. Bennis's
testimony should be excluded based on the testimony relating
to late-2000s competition. Last, it contends that Ms. Bennis
properly considered Briggs's profits in calculating a
reasonable royalty rate.
also contends that Exmark is not entitled to remittitur
because the jury's verdict is not monstrous or shocking
and is not entitled to a new trial because Exmark has not
shown any abuse of discretion.
Judgment as a Matter of Law/New Trial
patent case, motions for summary judgment and judgment as a
matter of law are decided under the law of the regional
circuit. MobileMedia Ideas LLC v. Apple Inc., 780
F.3d 1159, 1164 (Fed. Cir.), cert. denied, 136 S.Ct.
270 (2015). The defendant seeks relief pursuant to Federal
Rule of Civil Procedure 50 and 59.
to Fed.R.Civ.P. 50(b), a court must affirm the jury's
verdict unless, in viewing the evidence in the light most
favorable to the prevailing party, the court concludes that a
reasonable jury could not have found for that party. Hite
v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006).
“A Rule 50(a) motion is proper only if 'a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that
issue.'” Moran v. Clarke, 296 F.3d 638,
643 (8th Cir. 2002) (en banc) (“Such a ruling is
appropriate only when all the evidence points one way and is
susceptible of no reasonable inferences sustaining the
position of the non-moving party”). The evidence must
be viewed in the light most favorable to the nonmoving party
while assuming as proven all facts her evidence tends to
show, resolving all evidentiary conflicts in her favor, and
according her all reasonable inferences. Sheriff v.
Midwest Health Partners, P.C., 619 F.3d 923, 929 (8th
Cir. 2010). A post-trial motion for judgment as a matter of
law may be granted only if there was “‘a complete
absence of probative facts to support the conclusion
reached' so that no reasonable juror could have found for
the nonmoving party.” Id. at 928 (quoting
Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir.
59(e) motions for a new trial or amendment of judgment serve
the limited function of correcting manifest errors of law or
fact or to present newly discovered evidence. U.S. v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th
Cir. 2006). Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of
judgment.” Id. (quoting Hagerman v. Yukon
Energy Corp., 839 F.2d 404, 414 (8th Cir. 1988)). Under
rule 59(e), the court may reconsider issues previously before
it, and generally may examine the correctness of the judgment
itself. Leonard v. Dorsey and Whitney, LLP, 553 F.3d
609, 620 (8th Cir. 2009). Under Rule 60, relief from judgment
is available under the catch-all provision of the rule,
Fed.R.Civ.P. 60(b)(6), “‘only where exceptional
circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress.'”
Murphy v. Missouri Dep't of Corr., 506 F.3d
1111, 1117 (8th Cir. 2007) (quoting Harley v.
Zoesch, 413 F.3d 866, 871 (8th Cir. 2005)). Rule 60(b)
and Rule 59(e) motions are analyzed identically. Metro
St. Louis, 440 F.3d at 933 n.3; see also U.S. Xpress
Enters. Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809,
815 (8th Cir. 2003) (discussing factors one must show to
prevail under Rule 60(b)(2), which are the same under Rule
trials based on the weight of the evidence are generally
disfavored, and the district court's authority to grant a
new trial should be exercised sparingly and with caution.
United States v. Campos, 306 F.3d 577, 579 (8th Cir.
2002). The jury's verdict must be allowed to stand unless
the evidence weighs heavily enough against the verdict that a
miscarriage of justice may have occurred. United States
v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000). A district
court may weigh the evidence and evaluate for itself the
credibility of the witnesses in determining whether a new
trial is warranted. United States v. Anwar, 428 F.3d
1102, 1109 (8th Cir. 2005). A new trial is favored over a
remittitur when a court finds that passion or prejudice has
influenced a jury's damage award on the theory that such
passion or prejudice may also have influenced the jury's
determinations in other phases of the trial. Tedder v.
American Railcar Indus., Inc., 739 F.3d 1104, 1110-11
(8th Cir. 2014).
district court's decision to grant or withhold a
remittitur is determined under the law of the regional
circuit. Power Integrations, Inc. v. Fairchild
Semiconductor Int'l, Inc., 711 F.3d 1348, 1356 (Fed.
Cir. 2013). In the Eighth Circuit, remittitur “is a
procedural matter governed by federal, rather than state
law.” Taylor v. Otter Tail Corp., 484 F.3d
1016, 1019 (8th Cir. 2007) (quoting Parsons v. First
Investors Corp., 122 F.3d 525, 528 (8th Cir. 1997)). A
court is not at liberty to supplant its own judgment on the
damages amount for the jury's findings. Oiness v.
Walgreen Co., 88 F.3d 1025, 1030 (Fed. Cir. 1996). A
court may allow a ...