United States District Court, D. Colorado
NUTRITIONAL BIOMIMETICS, LLC, Plaintiff/Counterclaim Defendant and Counterclaim Plaintiff,
EMPIRICAL LABS INCORPORATED, Defendant/Counterclaim Plaintiff,
CHARLES BARKER Counterclaim Defendant, and EMEK BLAIR, and CLVM, LLC, Counterclaim Defendants/ Counterclaim Plaintiffs
EMPIRICAL LABS, INCORPORATED, KELLY GOYEN and ASA WALDSTEIN, Counterclaim Defendants.
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE.
matter is before the court on “Defendant Empirical
Labs' Motion In Limine to Exclude Evidence of
Undisclosed Damages” [Doc. No. 381] (“MUD”)
filed May 26, 2018 and on “Defendant Empirical
Labs' Motion In Limine to Exclude Undisclosed
Expert Opinion Testimony” [Doc. No. 411] filed October
26, 2018. Both motions are fully briefed and trial is
scheduled to begin on January 7, 2019.
to the court's directive, Empirical Labs, the proponent
of each motion, filed “Empirical Labs' Notification
Concerning Pending Motions In Limine” [Doc.
No. 453] on December 14, 2018. Neither party asked for
supplementary briefing as to either motion, indicating that
both motions were ripe for ruling by the court as briefed.
Biomimetics, LLC's (“NB”) only damages
disclosure to date reads as follows:
III. C.R.C.P. 26(a)(1)(C) Computation of
Damages. Plaintiff and Third-Party Defendants seek
damages from Defendants and Third-Party Defendants, including
but not limited to actual damages, presumed damages, special
damages, and consequential damages. It is not yet possible to
provide a precise calculation as to those damages and other
harm caused by Defendant and Third-Party Defendants. A
substantial amount of information needed to provide such a
calculation is in the possession of Defendant. Once that
documentation has been disclosed, Plaintiff will provide that
estimate in due course through expert testimony. At this
time, Plaintiff has determined that Defendant is liable to
Plaintiff for the “full retail price of manufactured
products” that it produces without a license. Upon
information and belief, Defendant has manufactured products
that would entitle Plaintiff to damages in the amount of
$708, 847.50. Plaintiff also seeks equitable relief in the
form of a preliminary and permanent injunction as described
in its filings with the Court. Plaintiff and Third Party
Defendants also seek their attorneys' fees, costs and
pre- and post-judgment interest.
MUD, Ex. A, [Doc. No. 382-1] at 4.
seeks to exclude evidence of NB's undisclosed
“claimed damages, and limiting NB's evidence to
that supporting its claims for equitable relief.” (MUD
at 14.) Empirical Labs claims that in spite of NB's
promises in its initial disclosures that NB would provide
damage estimates “in due course through expert
testimony, ” NB never disclosed a damages expert
witness and did not supplement its disclosure with respect to
calculations of damages sought. Id. Empirical Labs
NB and its two affiliates did not disclose which of the three
claimants sought which damages, did not disclose any
computations for their damages, did not disclose even
“lump-sum” figures, did not disclose which
categories were claimed for which of their combined seven
substantive claims for relief, and did not disclose against
which of the defending parties the damages were sought.
Id. at 5. Additionally, Empirical Labs claims that
in response to its discovery requests about damages, NB
Plaintiffs damages calculation is as follows[.] Plaintiff
reserves the right to amend its damages calculation as
discovery continues. Pursuant to the Licensing Agreement
executed on June 3, 2014[, ] Empirical is liable to Plaintiff
for the “full retail price of manufactured
products” that it produces without a license. Upon
information and belief, Defendant has produced the following
products, with the following retail prices as listed below.
Id. at 6. citing (Ex. C: NB's Resp. to Second
Request for Expedited Discovery, June 9, 2015, at 7-8,
interrog. no. 5). This response was likewise never
supplemented by NB.
April 20, 2017, this court entered an Order with respect to
NB's claimed liquidated damages contained in a contract
between Empirical Labs and NB. (April 20, 2017 Order granting
in part Empirical Labs' Motion for Partial Summary
Judgment [Doc. No. 172]) (“Damages Order”). This
court specifically held that NB's claimed damages of
$708, 847.50 representing the “full retail price”
of Empirical Lab's sold products was “punitive,
rather than compensatory” and that the
“stipulated amount is not reasonably related to the
actual damage suffered by NB for Empirical Lab's alleged
breach of the Resolution.” Id. at 9 (citing
Peerless Enters., Inc. v. T.N.T., Inc., 511 P.2d
538, 539 (Colo.App. 1973))(stipulated damages clause was
unenforceable under the second factor because it allowed the
injured party to recover as income the “gross
profits” of the violating party “without
incurring any of the expenses ordinarily required to produce
income”). Empirical Labs argues that by no later than
April 20, 2017, NB knew that the court found “the
proper measure of damages is the actual damage suffered [by
NB as] the non-breaching party” (Damages Order at 11)
and that NB's only specific damages disclosed in its Rule
26 disclosures was removed by the court.
Labs states and NB does not deny that NB never supplemented
this discovery response following the court's ruling in
the Damages Order with any theories of computation of
“actual damages” nor did it offer even so much as
a lump sum calculation about how much and under what theory
it would be attempting to prove its “actual
damages” nor did NB offer any damages expert whose
report might have been expected to offer a calculation theory
for NB's actual damages, if any.
in this case closed on or about July 31, 2017, after multiple
extensions, approximately three months subsequent to the
Damages Order. See, e.g. [Doc. No. 224] and [Doc.
No. 221] at 2 (recounting history of discovery cutoff
extensions). Empirical Labs' motion was filed, as noted,
in May, 2018. Subsequent to the filing of the MUD, rather
than attempting to immediately ameliorate any of the alleged
disclosure deficiencies, NB instead responded that it could
“not provide a precise calculation of damages, ”
adding that: “[a] substantial amount of information
needed to provide such a [damages] calculation is in the
possession of Defendant.” (Resp. to MUD [Doc. No. 389]
at 4.) However, at the time of the filing of the Response on
July 2, 2018, discovery had been closed for almost one year.
Therefore, the time had long passed to request and receive
information and evidence needed for Plaintiff to prove its
actual damages as it was legally ...