Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/11

No. 08-10521 Prescott’s re-direct examination. MGE questioned Dr. Prescott only on the lack of GE revenue represented on DX 37’s graph. Dr. Prescott was not questioned about whether the total PMI revenue indicated on the graph represented revenue related to PMI’s infringement of MGE’s copyright. GE/PMI argues that it would not have included DX 37 in its proposed exhibits had it known that Dr. Prescott’s testimony would be stricken because it had no idea MGE would be seeking GE/PMI’s profits rather than MGE’s own lost profits and reasonable royalties. MGE contends that seeking defendant’s profits was not a new theory of recovery because the Joint Pretrial Order indicates that it sought “monetary damages pursuant to 17 U.S.C. § 504” for copyright infringement. This provision encompasses all types of damages available for copyright infringement, including the copyright owner’s actual damages, the infringer’s profits attributable to the infringement, and statutory damages. However, in its Federal Rule of Civil Procedure 26(a) disclosures, when asked to provide “a computation of each category of damages claimed,” MGE indicated that Dr. Prescott’s testimony would comprise its damages calculation. Dr. Prescott only testified to MGE’s actual damages: MGE’s own lost profits and reasonable royalty rates. In other words, the record indicates that MGE planned to rely entirely on its actual damages claim; GE/PMI had no reason to think that MGE was seeking GE/PMI’s profits attributable to the infringement, nor was it prepared to defend against such a claim.

“[W]hen one of the prima facie elements of a claim is damages and the claimant fails to introduce evidence of those damages, he or she commits a fatal 11