Delta T, LLC v. Dan's Fan City, Inc.
| Decision Date | 27 May 2021 |
| Docket Number | Case No. 8:19-cv-1731-VMC-SPF |
| Parties | DELTA T, LLC d/b/a BIG ASS FAN COMPANY, Plaintiff, v. DAN'S FAN CITY, INC., and TROPOSAIR, LLC, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court pursuant to Plaintiff Delta T, LLC's Motion in Limine (Doc. # 163) and Defendants Dan's Fan City, Inc., and TroposAir, LLC's Motion in Limine (Doc. # 165), both filed on April 13, 2021. The parties responded to each Motion on April 27, 2021. (Doc. ## 166; 168). With leave of Court, Defendants replied to their Motion on May 4, 2021 (Doc. # 171), and Delta T sur-replied on May 7, 2021. (Doc. # 180). For the reasons set forth below, both Motions are granted in part and denied in part.
This is a patent case that arose out of Defendants' alleged infringement of three of Delta T's patented designs of a modern residential ceiling fan. (Doc. # 65 at ¶¶ 8, 20). Delta T initiated this suit in the District of Maryland on December 14, 2018. (Doc. # 1). Following transfer to this Court on July 17, 2019, the case proceeded through discovery. (Doc. # 30). The case is currently scheduled for trial during the June 2021 trial term. (Doc. # 99 at 3).
Now, all parties move to exclude the introduction of various arguments and evidence at trial. (Doc. ## 163; 165). All parties have responded. (Doc. ## 166; 168). Defendants replied to their Motion (Doc. # 171), and Delta T filed a sur-reply. (Doc. # 180). The Motions are now ripe for review.
"A motion in limine presents a pretrial issue of admissibility of evidence that is likely to arise at trial, and as such, the order, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial." In re Seroquel Prods. Liab. Litig., Nos. 6:06-md-1769-ACC-DAB, 6:07-cv-15733-ACC-DAB, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009). "The real purpose of a motion in limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence which may irretrievably effect the fairness of the trial." Id. (internal quotation marks omitted). "A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds." Id. (internal quotation marks omitted).
"A motion in limine is not the proper vehicle to resolve substantive issues, to test issues of law, or to address or narrow the issues to be tried." LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07-80172-CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial." In re Seroquel, 2009 WL 260989, at *1 (internal quotation marks omitted). "Instead, denial of the motion means the court cannot determine whether the evidence in question should be excluded outside the trial context." Id. "The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine." Id.
District courts have broad discretion in determining the admissibility of evidence, and the appellate court will not disturb this Court's judgment absent clear abuse of discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003) ().
Both Delta T and Defendants move to exclude certain evidence and arguments from trial. (Doc. ## 163; 165). The Court will address each Motion in turn.
Delta T seeks to exclude seven categories of evidence or argument from trial, some stipulated to by the parties, and others disputed. (Doc. # 163).
First, Delta T argues that "Defendants should be precluded from claiming invalidity as they have no witnesses competent to testify in that regard." (Doc. # 163 at 3). Specifically, Delta T contends that Defendants have no expert designer capable of testifying as to their double patenting defense. (Id. at 3-4). In reply to their own Motion in Limine, Defendants now state that they are "no longer pursuing [their] double patenting defense." (Doc. # 171 at 2). Therefore, the Motion is granted as to this requested relief and Defendants are precluded from making a double patenting defense.
Next, the parties stipulate that the Court exclude the following two categories of evidence, both relating to expert testimony: (1) "all experts from offering any direct testimony that is not contained within the four corners of their respective reports," and (2) "introduction or offering [of] expert opinion testimony from any witness who has not provided a written report required by Federal Rule of Civil Procedure 26(a)(2)(B)." (Doc. # 163 at 4-5; Doc. # 166 at 3).
In accordance with Rule 26 and the parties' stipulations, the Motion is granted as to this requested relief. All experts required to provide written reports under Rule 26 are "precluded from providing any direct testimony as to opinions, and any facts or evidence in support of those opinions . . . not expressly included in their reports." (Doc. # 163 at 4; Doc. # 166 at 3). The Court also excludes the "introduction or offering [of] expert opinion testimony from any witness who has not provided a written report required by [Rule] 26(a)(2)(B)." (Doc. # 163 at 5; Doc. # 166 at 3).
Next, Delta T moves to preclude Defendants' witnesses Mark Topolski and Stephen Oscher "from testifying about expense deductions from net profits [that] are not tied specifically to Vogue fan sales." (Doc. # 163 at 5). Defendants intend to calculate the amount of fixed costs associated with the sale of the Vogue fan by multiplying their total fixed costs by the ratio of Defendants' Vogue fan sales to their total sales. (Id. at 5-8). Delta T argues that this "across-the-board" calculation is inadmissible because Defendants have not demonstrated that their "overhead (or other comparable expenses) would have been any different had they not been selling the infringing goods." (Id. at 6, 8 (emphases omitted)). Defendants respond that it is for "the jury [to] decide which expenses should be considered in determining [Defendants'] net profits" and that Delta T may challenge the calculation at trial. (Doc. # 166 at 5).
Design patent infringers are "liable to the [patent] owner to the extent of his [or her] total profit[.]" 35 U.S.C. § 289. The patent owner bears the burden of proving damages. BIC Leisure Prods., Inc. v. Windsurfing Int'l, Inc., 1 F.3d 1214, 1217 (Fed. Cir. 1993). "If the plaintiff satisfies this burden of production, the burden of production then shifts to the defendant to come forward with evidence . . . of a different profit calculation, including any deductible costs." Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2017 WL 4776443, at *12 (N.D. Cal. Oct. 22, 2017).
However, "[n]either case law nor logic provides a clear rule for the proper treatment of fixed expenses in computing an award for profits." Chico's Fas, Inc. v. Clair, No. 2:13-cv-792-SPC-DNF, 2015 WL 2455501, at *5 (M.D. Fla. May 24, 2015) (quoting Schnadig Corp. v. Gaines Mfg. Co., 620 F.2d 1166, 1172 (6th Cir. 1980)). Delta T has provided no authority requiring that Defendants' calculation of fixed costs be excluded because it is based on an "across-the-board" calculation, and the Court does not find this calculation prejudicial, confusing, or misleading at this juncture. Accordingly, the Motion is denied as to this requested relief.
Next, Delta T moves to preclude Defendants "from presenting any argument, evidence, testimony, or suggestion of a 'David and Goliath' nature, such as comparing the relative size, financial strength, or geographical locale of the companies." (Doc. # 163 at 8). Defendants respond that they intend to introduce such facts relating to Dan's Fan City and TroposAir, although they do not expect "[a]t this point" to "make an argument that the jury should find in [Defendants'] favor because Delta T is significantly larger than [Defendants]." (Doc. # 166 at 5).
The Court agrees with Defendants that it cannot decide at this stage whether evidence relating to the parties' size, finances, or location is inadmissible. Where the parties are located may very well be relevant to the case. Or, Defendants' finances may be relevant to determining their profits. Accordingly, the Motion is denied at this juncture insofar as it seeks to exclude evidence of the parties' sizes, finances, or geographic locations.
Still, "the relative wealth of the parties should not be the focus of the trial," and to the extent Defendants attempt to compare the parties' wealth or size to make a "David and Goliath" argument, Delta T may re-raise this objection at trial. Unicolors, Inc. v. H & M Hennes & Mauritz L.P., 2:16-cv-02322-AB (SKx), 2017 WL 11489792, at *7 (C.D. Cal. Nov. 15, 2017). The Court makes the same determination with regard to the parties' geographic locations. See Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 539 (2d Cir. 1992) ().
Next, Delta T seeks to preclude Defendants' expert, Dr. Rene Befurt from testifying "in contravention of Delta T's expert's testimony as it relates to infringement." (Doc. # 163 at 10). Specifically, Delta T argues that Dr. Befurt...
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