Onvi Inc. v. Radius Project Dev.

• Decision Date: 13 September 2022
• Docket Number: 19 C 3201
• Parties: ONVI, INC., Plaintiff/Counter-Defendant, v. RADIUS PROJECT DEVELOPMENT, INC., and JABIL, INC., Defendant/Counter-Plaintiff.
• Court: U.S. District Court — Northern District of Illinois

ONVI, INC., Plaintiff/Counter-Defendant,
v.
RADIUS PROJECT DEVELOPMENT, INC., and JABIL, INC., Defendant/Counter-Plaintiff.

No. 19 C 3201

United States District Court, N.D. Illinois, Eastern Division

September 13, 2022

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN, JUDGE

As discussed in the court's summary judgment opinion, Doc. 165 (reported at 2022 WL 540796 (N.D. Ill. Feb. 23, 2022)), this diversity suit centers on the alleged failures of Radius Project Development, Inc., and its parent company, Jabil, Inc., to assist Onvi, Inc., with its development and marketing of Prophix, an electric toothbrush featuring a high-resolution camera for transmitting images to the user's dentist. Trial is set for September 30, 2022. Doc. 201. Arguably the most significant pretrial motion is Defendants' motion in limine to exclude the opinion testimony of Carrie Distler, Onvi's damages expert. Doc. 184. The motion, on which the court heard argument at last week's final pretrial conference, Doc. 209, is granted in part and denied in part.

Distler's expert report presents two damages opinions. The first estimates Onvi's lost profits due to the failed (or, at a minimum, delayed) commercialization of Prophix. Doc. 186-2 at ¶¶ 40, 80. The second estimates the costs incurred by Onvi in reliance on Defendants' alleged promises concerning Prophix's development. Id. at ¶ 40. Defendants maintain that the lost profits opinion is inadmissible under Evidence Rule 702 because it does not reflect Illinois law governing lost profits for new businesses or products. Doc. 186 at 3-7. Defendants further

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maintain that both damages opinions are inadmissible under Rule 702 because they reach conclusions based on unreliable data. Id. at 7-11.

Rule 702 provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R.

Evid. 702. The district court serves as the “gate-keeper who determines whether proffered expert testimony is reliable and relevant before accepting a witness as an expert,” Winters v. Fru-Con Inc., 498 F.3d 734, 741 (7th Cir. 2007) (internal quotation marks omitted), and “has ‘broad latitude' to determine how to evaluate expert testimony,” United States v. Hill, 818 F.3d 289, 297 (7th Cir. 2016) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999)). The expert's proponent bears the burden of proving by a preponderance of the evidence that the expert's testimony satisfies Rule 702. See United States v. Saunders, 826 F.3d 363, 368-69 (7th Cir. 2016); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

The court first considers Distler's lost profits opinion. Under Illinois law, damages, including lost profits damages, may be awarded only if they are “proved with a reasonable degree of certainty.” Milex Prods., Inc. v. Alra Lab'ys, Inc., 603 N.E.2d 1226, 1235 (Ill. App. 1992); see also TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 632...