Apple's New Expert Tallies Damages

, The Litigation Daily

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Julia Love writes for The Recorder, an American Lawyer affiliate.

In a trial with a strong sense of déjà vu, Apple brought forth a fresh face Thursday—damages expert Julie Davis.

The Chicago accountant was tapped to replace Apple's original expert, Terry Musika, who died late last year. But her assignment was an unusually narrow one: to walk step-by-step through her predecessor's calculations, adjusting them for a shorter time window, and testify to the resulting figure.

Although she is a newcomer to the blockbuster case, Davis did not blink in the face of her adversary, Samsung lawyer William Price. The partner at Quinn Emanuel Urquhart & Sullivan prodded Davis to concede that Apple typically rolls out one new product a year. Samsung, he claimed, introduces new products and features around the world each day.

"Sounds like apples and oranges," Davis said.

Price pounced. "Maybe it's apples and oranges," he quipped. "But I'm talking about Apple and Samsung right now."

After a landmark patent trial last fall, the smartphone rivals are back in court in San Jose to hash out damages because U.S. District Judge Lucy Koh ruled that a chunk of the original $1.05 billion award relied on the wrong notice date. Testifying on the second day of the damages rematch, Davis explained how she rang up a $380 million bill­—nearly $330 million more than Samsung argues it should have to pay.

Davis testified that she had gone to great lengths to recreate Musika's process, from interviewing the same Apple executives to poring over his testimony from the first trial. She said that she and her staff at Davis & Hosfield Consulting have spent about 900 hours preparing damages calculations, on top of the 7,000 hours logged by Musika and his colleagues in connection with the first trial.

"I was asked to step into his shoes and complete the calculation," Davis told jurors.

Jurors can award Apple lost profits, typically the most lucrative award, if they conclude that sales made by Samsung would have gone to Apple if not for the infringement. They will consider the strength of consumer demand for Apple's products, what alternatives were on the market and whether Apple was capable of stepping up its manufacturing.

"I absolutely think Apple lost sales," Davis said under questioning from Apple lawyer Rachel Krevans, a partner at Morrison & Foerster.

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