No. 08-10521
Prescott’s re-direct examination. MGE questioned Dr. Prescott only on the lack of GE revenue represented on DX 37’s graph. Dr. Prescott was not questioned about whether the total PMI revenue indicated on the graph represented revenue related to PMI’s infringement of MGE’s copyright.[1]
GE/PMI argues that it would not have included DX 37 in its proposed exhibits had it known that Dr. Prescott’s testimony would be stricken[2] because it had no idea MGE would be seeking GE/PMI’s profits rather than MGE’s own lost profits and reasonable royalties. MGE contends that seeking defendant’s profits was not a new theory of recovery because the Joint Pretrial Order indicates that it sought “monetary damages pursuant to 17 U.S.C. § 504” for copyright infringement. This provision encompasses all types of damages available for copyright infringement, including the copyright owner’s actual damages, the infringer’s profits attributable to the infringement, and statutory damages. However, in its Federal Rule of Civil Procedure 26(a) disclosures, when asked to provide “a computation of each category of damages claimed,” MGE indicated that Dr. Prescott’s testimony would comprise its damages calculation. Dr. Prescott only testified to MGE’s actual damages: MGE’s own lost profits and reasonable royalty rates. In other words, the record indicates that MGE planned to rely entirely on its actual damages claim; GE/PMI had no reason to think that MGE was seeking GE/PMI’s profits attributable to the infringement, nor was it prepared to defend against such a claim.
“[W]hen one of the prima facie elements of a claim is damages and the claimant fails to introduce evidence of those damages, he or she commits a fatal
- ↑ The trial transcript indicates that MGE may have been trying to refer to a different graph (DX 42, a comparison of MGE UPS equipment gross revenue versus UPS service gross revenue from 1997 through 2007) when it requested to admit DX 37.
- ↑ GE/PMI alleges it only intended to use DX 37 to impeach Dr. Prescott’s assertion that as MGE’s revenues went down, GE/PMI’s revenues went up; the exhibit shows PMI’s total revenue remaining relatively constant from 2001 through 2004.
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