By Memorandum Order entered by The Honorable Richard G. Andrews in Bio-Rad Laboratories, Inc. et al. v. 10X Genomics, Inc., Civil Action No. 15-152-RGA (D.Del. November 2, 2018), the Court denied Defendant’s motion to exclude the Supplemental Expert Report and Opinion of Plaintiffs’ damages expert, James E. Malackowski, and preclude Plaintiffs from presenting lost profits at trial.

By way of background, the Court entered a prior Daubert order which excluded Mr. Malackowski’s lost profits opinion regarding a two-supplier market and his reasonable royalty opinion to the extent that he failed to account for apportionment. Id. at *1. The Court subsequently granted Plaintiffs’ request to supplement Mr. Malackowski’s report and Plaintiffs subsequently conceded that they would not present a claim for lost profits at trial. Id. Thus, the only issue before the Court on Defendant’s motion to exclude the Supplemental Expert Report is whether it filled the gap in Mr. Malackowski’s initial reasonable royalty opinion with respect to apportionment. Id.

Defendant’s main argument was that Mr. Malackowski’s apportionment methodology remained flawed because he relied on qualitative, rather than quantitative, analyses. Id. However, the Court noted that Defendant’s theory conflicts with the general understanding that “any reasonable royalty analyses necessarily involves an element of approximation and uncertainty.” Id. After considering the parties’ briefing and oral argument, the Court concluded that “Mr. Malackowski’s supplemental report fills the gaps in his initial report at least to the extent necessary to make his reasonable royalty opinion admissible.” Id. at *4. The Court also rejected the remaining arguments made by Plaintiffs to exclude the supplemental report and testimony with respect to the reasonable royalty and apportionment.

A copy of the Memorandum Order is attached.