Alifax Holding Spa v. Alcor Scientific Inc. et al

Filing 360

MEMORANDUM AND ORDER precluding Plaintiff from seeking compensatory damages at the second trial, as requested in 354 MOTION/Defendants' Request for Case Management Order Permitting Alcor to File Motion for Summary Judgment and Set the Limited Scope of any Second Trial. So Ordered by District Judge William E. Smith on 9/1/2021. (Urizandi, Nisshy)

Case 1:14-cv-00440-WES-LDA Document 360 Filed 09/01/21 Page 1 of 7 PageID #: 18167

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
ALIFAX HOLDING SPA,
)
Plaintiff,
)
)
v.
)
C.A. No. WES 14-440
)
ALCOR SCIENTIFIC INC.; and
)
FRANCESCO A. FRAPPA,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
After Defendants filed a Request for Case Management Order,
ECF No. 354, the Court ruled, inter alia, that the parties would
not be allowed to introduce any new evidence at retrial and that
the Court’s evidentiary rulings made prior to the first trial would
apply to the second.
357. 1

See July 16, 2021 Mem. & Order 5, 8, ECF No.

However, the Court did not reach a decision on Defendants’

argument that Alifax should be limited to nominal damages, as
Alifax had not substantively responded to that contention.
id. at 8-9.

See

Having solicited further briefing on the issue, the

Court now concludes that Alifax will be precluded from seeking
compensatory damages at the second trial.
Alifax’s theory of damages is as follows. At some point prior
to the June 2012 trade show for the American Association for

1

This Order assumes familiarity with those that precede it.

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Clinical Chemistry, Alcor and Francesco Frappa misappropriated
Alifax’s conversion algorithm and used it in an iSED prototype.
Alifax Holding Spa v. Alcor Sci. Inc., 404 F. Supp. 3d 552, 57677 (D.R.I. 2019).

Thanks in part to the illicitly borrowed

algorithm, Alcor’s trade show presentation, which was buoyed by
its bullish claims regarding the iSED’s capabilities, was a hit.
Id. at 572, 576-77.

Without Alifax’s algorithm, Alcor would have

been forced to spending months developing its own, and it could
not have made such a successful showing.

Id. at 576.

Because the

June 2012 exposition generated sales of the iSED and related
products, Alcor’s misdeeds led to its unjust enrichment.

Id.

For this theory to hold up, Alifax needs evidence (1) that
the alleged misappropriation gave Alcor a head start and (2) that
the head start helped to bring about certain earnings over the
following months or years.

While Alifax has (marginal) evidence

of a head start, there is no admissible evidence tying that head
start to a measure of unjust enrichment.
1.

Evidence of a Head Start
At the first trial, Dr. Bergeron testified that it would have

taken Alcor months to produce an original conversion algorithm.
Trial Tr. vol. 3, 115:23-116:1, ECF No. 333. Although this opinion
was not contained in his expert report, Defendants did not object.
See Alifax Holding Spa, 404 F. Supp. 3d at 576 n.30 (citing Trial
Tr. vol. 3, 115:23-116:9, 119:10-120:6); April 30, 2019 Mem. &
2

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Order 10 & n.8, 12-13 & n.11, ECF No. 288; Expert Report of Dr.
Brian Bergeron ¶¶ 44-46, ECF No. 144-11.

However, on retrial,

Defendants presumably would object on the basis that the opinion
was not disclosed, and their objection would be sustained.

See

Fed. R. Civ. P. 26(a)(2)(D), 37(c)(1).
Dr. Bergeron’s surprise statement was not the only evidence
to support the head start theory.

According to some evidence,

when Alcor ultimately set out to develop its own algorithm, the
effort spanned from January to June 2013.

See Alifax Holding Spa,

404 F. Supp. 3d at 570, and documents cited; id. at 576.

For the

sake of this Order, the Court will assume that this evidence would
be sufficient for a jury to infer that Alcor could not have
developed an original algorithm in time for the trade show.
2.

Evidence Linking the Head Start to Unjust Enrichment
To show unjust enrichment, a plaintiff “has the burden of

producing evidence permitting at least a reasonable approximation
of the amount of the wrongful gain.”

Restatement (Third) of

Restitution and Unjust Enrichment § 51(5)(d).

And of course, a

plaintiff must provide timely disclosures regarding the witnesses
and evidence through which the plaintiff will attempt to establish
damages.

See Fed. R. Civ. P. 26(a)(2)(D), 26(e), 37(c)(1).

Prior to the first trial, the only damages witness disclosed
by Alifax was Christopher Bokhart.

See Alifax Holding Spa, 404 F.

Supp. 3d at 580; see also Pls.’ Initial Disclosures 5, ECF No.
3

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284-1;

Plaintiff’s

First

Am.

Answers

Interrogatories 29, ECF No. 284-2.
Bokhart’s

expert

conversion

opinions

algorithm

inadmissible[,]”

April

to

damages

misappropriation
2019

First

Set

of

Although the Court ruled that

regarding

30,

Defs.’

Mem.

were
&

stemming

from

“unreliable

Order

13,

the

and
Court

permitted Bokhart to testify as a summary witness pursuant to Rule
1006 of the Federal Rules of Evidence, Alifax Holding Spa, 404 F.
Supp. 3d at 580 (citing Trial Tr. vol. 11, at 20:11-22, 33:10-25).
As the Court noted in its prior Order granting in part the motions
for new trial, that decision was made in error.

Id. at 581-82.

Nonetheless, Alifax contends that it should once again be permitted
to

introduce

Bokhart’s

“appropriately

limited

testimony,

summary

this

time

examination.”

through
Alifax’s

an
Mem.

Regarding Damages 4, ECF No. 358.
“[T]o prove the content of voluminous writings, recordings,
or photographs that cannot be conveniently examined in court[,]”
a

party

may

testimonial.

use

summary

evidence,

Fed. R. Evid. 1006.

either

documentary

or

Bokhart’s summary testimony was

impermissible, among other reasons, 2 because it was “too closely
entwined with his excluded expert opinion to be cleanly dissected
For example, Bokhart did not summarize already admitted
evidence. Alifax Holding Spa, 404 F. Supp. 3d at 581 (“[T]he key
to admissibility is that the summary witness’s testimony does no
more than analyze facts already introduced into evidence . . . .”
(quoting United States v. Stierhoff, 549 F.3d 19, 28 (1st Cir.
2008))).
2

4

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and presented under Rule 1006.”

Alifax Holding Spa, 404 F. Supp.

3d at 581; cf. Colon-Fontanez v. Municipality of San Juan, 660
F.3d 17, 31 (1st Cir. 2011) (affirming admittance of summary
testimony, in part because the witness’s testimony regarding “her
method of preparing and summarizing the exhibits d[id] not an
instant expert of her make”); SEC v. Franklin, 265 Fed. Appx. 644,
646 (9th Cir. 2008) (unpublished) (“There was no error in allowing
the preparer of the [summary] exhibits to testify because no expert
opinions or conclusions were offered.”(citation omitted)).
On retrial, this obstacle would prove impassable for Alifax.
Any testimony from Bokhart would necessarily be based on his expert
knowledge and opinions of the case.

Moreover, the materials

Bokhart would presumably summarize are not sufficiently voluminous
to justify a summary witness, let alone one who has intertwined –
and inadmissible – opinions he seeks to share.

Therefore, Bokhart

will not be permitted to testify in any capacity, on any topic.
Furthermore, as the Court has instructed, “no new evidence or
witnesses will be permitted.”
No. 357.

July 16, 2021 Mem. & Order 5, ECF

In addition to the reasons already given, id., the

decision to bar new testimony on damages is also supported by the
standard
37(c)(1):

considerations

pertaining

to

preclusion

under

Rule

“(1) the history of the litigation; (2) the sanctioned

party’s need for the precluded evidence; (3) the sanctioned party’s
justification (or lack of one) for its late disclosure; (4) the
5

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opponent-party’s ability to overcome the late disclosure’s adverse
effects — e.g., the surprise and prejudice associated with the
late disclosure; and (5) the late disclosure’s impact on the
district court’s docket.”

Esposito v. Home Depot U.S.A., Inc.,

590 F.3d 72, 78 (1st Cir. 2009) (citing Macaulay v. Anas, 321 F.3d
45, 51 (1st Cir. 2003)). 3

Preclusion of new evidence is warranted

by the years-long slog of this litigation, the numerous failed
theories of liability and damages (concerning patent and copyright
claims that were asserted all the way to trial before crashing and
burning),

the

lack

of

justification

for

any

late-breaking

evidence, the obvious prejudice that Defendants would suffer, and
the continued, outsized impact of this case on the Court’s docket.
Because Alifax did not disclose any damages witnesses besides
Bokhart, Alifax will be unable to meet its “burden of producing
evidence permitting at least a reasonable approximation of the
amount of the wrongful gain.”

Restatement (Third) of Restitution

and Unjust Enrichment § 51(5)(d); see also Adv. Training Group
Worldwide, Inc. v. Proactive Techs. Inc., 19-CV-505, 2020 WL
4574493, at *2, 4-9 (E.D. Va. Aug. 7, 2020) (barring the plaintiff
from presenting lay testimony on damages where the only properly
The Court’s discretion to exclude undisclosed witnesses is
arguably even greater on retrial than in the original-trial
scenario addressed in Esposito. See Fusco v. Gen. Motors Corp.,
11 F.3d 259, 267 (1st Cir. 1993); Oriental Fin. Group, Inc. v.
Fed. Ins. Co., 483 F. Supp. 2d 161, 167 (D.P.R. 2007).
3

6

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disclosed damages witness was an expert whose testimony had been
excluded). 4
The history of this case is replete with shifting theories
and dubious litigation practices.

These are described in various

places throughout the record, in prior written orders, bench
rulings during trial, and the like.

These practices led to the

error that resulted in the grant of a new trial, wasting the time
of the jury and the Court.

All of this was preventable.

The rules

are not that complicated, and they are designed to avoid situations
like this if they are followed.

Alifax did not disclose an

admissible damages expert and therefore has no evidence at this
late date that could sustain the relief it seeks.
For these reasons, as sought by Defendants’ Request for Case
Management Order, ECF No. 354, Alifax will be precluded from
seeking compensatory damages at the second trial.
IT IS SO ORDERED.

William E. Smith
District Judge
Date: September 1, 2021

Alifax argues that certain fact witnesses could provide
additional foundation for damages testimony from Bokhart.
See
Alifax’s Mem. Regarding Damages 4-5, ECF No. 358.
But the
strongest foundation is little use without a structure (Bokhart’s
testimony) to go on top.
4

7