XpertUniverse Inc. v. Cisco Systems Inc.
MEMORANDUM addressing motion for a new trial and correcting an error. Signed by Judge Richard G. Andrews on 1/30/2014. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 09-157-RGA
CISCO SYSTEMS INC.,
I granted JMOL on the fraudulent concealment claim. (D.I. 768). I expressly did not rule
on Defendant's alternative motion for a new trial. (/d. at 9). This was an error, as the parties
have pointed out. (D.I. 771, 772). See Fed. R. Civ. P. 50(c)(l), which requires that I "must also
conditionally rule on any motion for a new trial by determining whether a new trial should be
granted if the judgment is later vacated or reversed." See Arlington Industries, Inc. v. Bridgeport
Fittings, Inc., 692 F.Supp. 2d 487, 504-05 (M.D. Pa. 2010).
The standard for granting a new trial was set forth in my previous opinion. (D.I. 768 at 45). The relevant portion of that standard is that a new trial may, in the court's discretion, be
granted when "'the jury's verdict is against the clear weight of the evidence, and a new trial must
be granted to prevent a miscarriage of justice."' (Id at 4).
The new trial motion (D.I. 699) might best be described as an afterthought in the briefing.
(See D.I. 700- at 16 (two sentences), 32-35, 41 (two sentences)).
On the question of granting a new trial on the grounds that "the jury's implied finding
that XU concealed a material fact is against the great weight of the evidence," (id at 16), I
previously concluded there was insufficient evidence of materiality. (D.I. 768 at 9). I also
incorrectly concluded I did not need to decide the new trial question. (Id ). If, however, on
appeal, the materiality decision is reversed, it will be because I have either wrongly evaluated the
applicable legal standard or the sufficiency of the evidence, and, in either event, I do not believe I
am able to conclude, assuming I have previously erred, that the jury's verdict was against the
clear weight of the evidence. Thus, on this particular ground, I conditionally deny the motion for
a new trial.
On the question of granting a new trial on damages, Cisco made a more robust argument.
(D.I. 700 at 32-35). I did previously acknowledge that besides for a JMOL on damages that
Cisco was asking for remittitur and/or a new trial. (D.I. 768 at 9). I did not further address those
topics, however, after deciding that JMOL should be granted on the damages issue. In view of
my decision on the JMOL, I do not believe that it is appropriate to have a conditional remittitur
award. Thus, I will dismiss that request as moot.
Cisco advanced three arguments in support of the request for a new trial. The first
argument is based on the same grounds that were advanced in support ofthe JMOL. (D.I. 700 at
32). If, however, on appeal, the damages decision is reversed, it will be because I have either
wrongly evaluated the applicable legal standard or the sufficiency of the evidence, and, in either
event, I do not believe I am able to conclude, assuming I have previously erred, that the jury's
verdict was against the clear weight of the evidence. Thus, I do not find this argument
The second argument is that the $70,000,000 award is excessive. (Id ). I believe in this
particular case that the disposition of the damages appeal will necessarily determine whether the
award was excessive, and therefore I do not find this argument persuasive either.
The third argument is that the $70,000,000 is based entirely on unreliable expert
testimony. The argument in support of this is, essentially, that I abused my discretion in allowing
the defense expert to testify as he did. Cisco's briefs do not raise any issue about any trial rulings
on his testimony 1 (see D.I. 700 at 33-35; D.I. 755 at 18-20), relying rather upon the pretrial
Daubert hearing and decision (D.I. 647) for the claim of error. I certainly expect that Cisco (and
perhaps XU too on the portions of the expert's testimony I excluded) will include my handling of
the Daubert decision as an issue on appeal. Thus, if there was an abuse of discretion, it will be
remedied by the Court of Appeals, and, if there was not, then there is no apparent reason why I
should grant a new trial on this basis.
On the question of granting a new trial on patent infringement and the on-sale bar (D.I.
700 at 41 ), I specifically found that the infringement verdict was not "against the great weight of
the evidence." (D.I. 768 at 14). My opinion also impliedly found that the on-sale bar decision
was not against the great weight of the evidence, although I did not specifically say so. (Id at 1415). My order, however, dismissed the relevant portion of the Cisco's motion as being moot.
(D.I. 769 at 2). I will enter an order correcting that mistake.
Cisco says that it could not cross-examine Mr. Bratic as effectively as it might have
because "the Duff & Phelps and Standard & Poor's reports ... had been excluded." (D.I. 755 at
19). Those reports were excluded at Cisco's request. (D.I. 581-1 at 432-34; see D.I. 608 at 3-4).
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