United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge
the Court is Defendants' Motion to Exclude the Opinions
of Expert Witness Christopher J. Bokhart (ECF No. 230). Mr.
Bokhart has proffered opinions concerning damages for the
Plaintiffs' claims of patent infringement, copyright
infringement, and trade secret misappropriation. The
Defendants have asked the Court to exclude Mr. Bokhart's
opinions in their entirety. The Court heard extensive
argument on this motion over two days; the motion was granted
in part and denied in part in two earlier
Court kept the remainder of the motion under advisement and
bifurcated the trial into a liability phase and a damages
phase. During trial, the claims narrowed. The copyright claim
fell away with the exclusion of Mr. Bokhart's damages
testimony; the patent infringement claim was withdrawn (with
the Court entering judgment for the Defendants) after the
evidence fell short of proving the allegations. Thus, the
case has been narrowed to one alleging trade secret
misappropriation and breach of a confidential relationship.
Court held a lengthy conference with the parties to discuss
the scope and admissibility of Mr. Bokhart's opinions
after the jury returned a verdict finding liability on April
30, 2019. This order now addresses the last subject of Mr.
Bokhart's opinions: damages for trade secret
reasons that follow, the Defendants' motion is GRANTED IN
PART and Mr. Bokhart's opinions concerning trade secret
misappropriation damages are EXCLUDED in their entirety. I.
Bokhart's Trade Secret Damages Opinion Mr. Bokhart
advances two damages theories based on these claims: (1) a
general opinion that Alifax is entitled to recover “all
earned revenue” from the sale of Alcor's iSED
analyzers (including convoyed sales) from fiscal year 2012
through at least September 30, 2018, as unjust enrichment
damages attributable to misappropriation of all “trade
secrets”; and (2) a narrower opinion that Alifax is
entitled to “head start” damages, i.e., unjust
enrichment specifically arising from any temporal advantage
obtained by the misappropriation of one particular trade
secret - “the trade secret related to software and
firmware . . . .” See Expert Report of
Christopher J. Bokhart (“Bokhart Rpt.”)
¶¶ 189-93, ECF No. 237; Suppl. Expert Report of
Christopher J. Bokhart (“Suppl. Rpt.”) ¶ 11,
Ex. 8.2A S n.3, ECF No. 237-1.
April 30, 2019, the jury returned a verdict finding that the
Defendants willfully misappropriated three trade secrets:
(1) Using a clear, plastic capillary photometer sensor
(“CPS”) in an automated ESR analyzer, but only
through February 6, 2014;
(2) Portions of computer program source code concerning the
conversion of photometric measurements, including source code
containing four specific conversion constants; and
(3) Information concerning an anemia factor set forth in
trial exhibits 34 and 19.
See Trial Tr. Vol. 10 at 14:21-15:18, 15:25-16:16.
An earlier formulation of the “source code” trade
secret included alleged code used by Alifax to obtain or
acquire photometric measurements. See, e.g.,
Pl.'s Second Am. Identification of Misappropriated Trade
Secrets ¶ 5, ECF No. 137-27. Over Alifax's
objection, the Court declined to allow Alifax's
“acquisition” theory to be presented to the jury
due to a failure of proof at trial. See Charge Conf.
Tr. at 11:9-16:4. Only “conversion” source code
evidence was presented by Alifax during the liability phase.
702 of the Federal Rules of Evidence instructs that an expert
may only provide opinion testimony 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.
See also Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 592-93 (1993). The Court, acting as gatekeeper, may
exercise wide discretion to admit or exclude such testimony
consistent with its obligation to ensure that the jury
receives only relevant and reliable expert evidence.
Morris v. Rhode Island Hosp., C.A. No. 13-304-ML,
2014 WL 3107296, *5 (D.R.I. July 7, 2014) (citing Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). And
“while methodology remains the central focus of a
Daubert inquiry . . . trial judges may evaluate the
data offered to support an expert's bottom-line opinions
to determine if that data provides adequate support to mark
the expert's testimony as reliable.”
Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161