APPLE INC.

v.

CORELLIUM, LLC

This matter is before the Court upon the Magistrate Judge’s Report and Recommendation on Defendant Corellium, LLC’s Daubert Motion to Preclude Certain Testimony by David B. Connelly [DE 610], the Magistrate Judge’s Paperless Order Granting Apple’s Unopposed Motion for Clarification/Correction of Report and Recommendation [DE 617], Defendant’s Objection [DE 622 (unsealed) & DE 711 (sealed)], Plaintiff’s Response [DE 663 (unsealed) & DE 705 (sealed)], and Plaintiff’s Reply [DE 708 (unsealed) & DE 767 (sealed)]. David B. Connelly (“Connelly”) is a damages expert for Plaintiff. The Report recommends Connelly not be permitted to testify as to his legal opinions and Defendant’s alleged discovery violations but that he be permitted to testify as his opinions about Plaintiff’s damages. After the Magistrate Judge entered his Report and Recommendation (the “Report”), the Court entered its Order on the Parties’ Motions for Summary Judgment [DE 784 (unsealed) & DE 783 (sealed)], in which the Court granted summary judgment in favor of Defendant on Plaintiff’s copyright claims.

Thus, the only remaining claim in this matter is Plaintiff’s claim brought pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §§ 1201(a)(2), (b), 1203. Defendant raises two main objections to the Report: (1) that the Magistrate Judge erred in finding (2) Mr. Connelly’s methods are unreliable. Only the second objection remains relevant because the infringement claims are no longer pending.

Accordingly, the Court will only address this objection. The Report found that Connelly’s methodologies were reliable because he used a reliable scientific method or investigation to substantiate his damage opinions. The Report further noted that any issues Defendant may have with Connelly’s calculations could be addressed on crossexamination.

Defendant maintains that Connelly’s opinions are unreliable because the numbers he uses in his calculations have no basis in fact.

Plaintiff responds that Defendant is not actually questioning Connelly’s methodology or calculations but the factual underpinnings of those calculations. In other words, Defendant is questioning the numbers used by Connelly in making

his calculations and reaching his opinions. “The general rule [is] that the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” In re Trasylol Prod. Liab. Litig., No. 08-MD-01928, 2010 WL 1489793, at *6 (S.D. Fla. Feb. 24, 2010) (internal marks and citations omitted).

Examination of Connelly’s reports shows how he arrived at the numbers he used as input for his calculations. If Plaintiff believes that these numbers are speculative and unsupported by the evidence, Plaintiff may cross-examine Connelly about these choices and the basis for any assumptions that he made in choosing those numbers. As the Supreme Court has noted, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).

Consequently, Defendant’s objection is overruled.

Accordingly, it is ORDERED that: 1. The Magistrate Judge’s Report and Recommendation on Defendant Corellium, LLC’s Daubert Motion to Preclude Certain Testimony by David B. Connelly [DE 610] is AFFIRMED and ADOPTED in part. The Report is affirmed and adopted except for the portion of the Report addressing the causal nexus between Defendant’s gross revenues and the infringement, which portion is now moot.

2. Defendant Corellium, LLC’s Daubert Motion to Preclude Certain Testimony by David B. Connelly [DE 454 (unsealed) & DE 468 (sealed)] is GRANTED in part and DENIED in part in accordance with the Report and this Order. DONE and ORDERED in Fort Lauderdale, Florida, this 11th day of March, 2021.

RODNEY SMITH

UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record