Just because an expert says something is so doesn't mean that it is. That's the lesson of Judge Gale's ruling last week in Carter v. Clements Walker. He rejected the evidentiary value of an expert's report stating that Plaintiff's damages were $33 million, saying that it was insufficient to create a genuine issue of material fact on whether Plaintiff had suffered any damages at all.
Some background will help. The case is for legal malpractice. Plaintiff, an inventor, alleged that the Defendant law firm committed malpractice by allowing a domestic patent application to be published before it filed an application for international patent rights. Since some foreign countries require "absolute patent novelty" before granting a patent, Plaintiff couldn't obtain a patent in those countries given the filing of the U.S. application.
The case has been up and down from the Court of Appeals. The COA reversed the previous dismissal of the case. It's been the subject of blog posts here twice before, in 2010 and last year.
So now that the COA had breathed new life into the case, how was Plaintiff damaged by the alleged malpractice? By the loss of the opportunity to sell or license his invention in those foreign countries in which he couldn't secure a patent. What was the value of those potential revenues? If Plaintiff had had revenues in the U.S. from his invention, those might have served as a benchmark, but the invention had never been manufactured or licensed in this country.
Plaintiff relied on the report of an expert witness, which concluded that he had "lost total gross profits of approximately $33 million between the years of 2010 and 2020" as a result of not obtaining foreign patent rights.
Read this article in its entirety on North Carolina Business Litigation Report, a blog for lawyers focusing on issues of North Carolina business law and the day-to-day practice of business litigation in North Carolina courts.
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