MULTIPLE ENERGY TECHNOLOGIES, LLC v. UNDER ARMOUR, INC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MULTIPLE ENERGY )

)

TECHNOLOGIES, LLC,

) 2:20-CV-664-NR

)

Plaintiff, )

)

v. )

)

)

UNDER ARMOUR, INC.,

)

)

)

Defendant.

)

MEMORANDUM OPINION

J. Nicholas Ranjan, United States District Judge

Plaintiff Multiple Energy Technologies, LLC brings various claims against

Defendant Under Armour, Inc. for violation of the Lanham Act; violation of the

Sherman Act; misappropriation of trade secrets; breach of non-disclosure agreement;

tortious interference with contract; tortious interference with prospective business

expectancies; unjust enrichment; unfair competition; conversion; a claim for an

accounting; and a claim for injunctive relief. Following discovery, MET moved to

exclude the expert testimony of Under Armour’s damages expert Jerome Schmitt.

ECF 261. No party requested an evidentiary hearing. Order, ECF 290.

After careful consideration, the Court will deny the motion, with one

qualification. The Court has questions about Mr. Schmitt’s use of the “relief from

royalty” method, and finds that it is necessary to hold an hearing—either

at the final pre-trial conference or at trial, with Mr. Schmitt in appearance—

pertaining solely to this narrow issue. So, the Court will hold in abeyance this aspect

of the motion, but will deny the rest of the motion.

BACKGROUND1,2

Under Armour retained Jerome Schmitt to rebut MET’s damages expert Peter

Wrobel. ECF 262-3, ¶ 7. Mr. Schmitt opined that any disgorgement of Under

Armour’s profits from the sale of Recover products would be no more than $151,162.

., ¶ 76. This was based on several assumptions and methods, including: (1)

assuming that the appropriate time frame for the disgorgement analysis is the period

from July 1, 2017 to December 31, 2020; (2) applying the “full absorption” method,

and thus finding that certain costs are appropriate deductions for purposes of

calculating the profits subject to disgorgement; (3) assuming a number of factors

other than the alleged advertising—including contributions from Under Armour’s

brand value and advertising of the Recover products beyond the alleged false

statements—should be taken into account in calculating profits subject to

disgorgement; and (4) applying the relief from royalty method, to essentially discount

damages due to Under Armour’s brand value. ., ¶¶ 54, 64, 67, 73.

LEGAL STANDARD

The Court serves as the “gatekeeper” of expert testimony.

, 509 U.S. 579, 597 (1993); , 526

U.S. 137, 141 (1999). “As gatekeeper, a trial judge has three duties: (1) confirm the

witness is a qualified expert; (2) check the proposed testimony is reliable and relates

to matters requiring scientific, technical, or specialized knowledge; and (3) ensure the

expert’s testimony is sufficiently tied to the facts of the case, so that it fits the dispute

and will assist the trier of fact.” , 949

1 The Court writes for the benefit of the parties, who are familiar with the extensive

factual and procedural background, as well as the allegations in the third amended

complaint.

2 Unless otherwise noted, all citations to the record refer to the page number of the

ECF filing stamp on the top of each page (rather than the native page number).

F.3d 825, 832 (3d Cir. 2020) (cleaned up). “[T]he burden of proof under FRE 702 is

on the proponent of the expert testimony, not the party moving to exclude that

testimony, to establish the admissibility of that testimony by a preponderance of the

evidence.” , No. 20-1977, 2024 WL 3691607,

at *3 (W.D. Pa. Aug. 7, 2024) (Hornak, C.J.).

Expert testimony must be reliable. , 509 U.S. at 589;

., 526 U.S. at 141. To be sufficiently reliable, the expert’s testimony need not

have “the best foundation, or even . . . [be] supported by the best methodology or

unassailable research.” , 949 F.3d at 834 (citation omitted). Rather,

the testimony must be supported by “good grounds,” using a reliable methodology.

A court considers various factors to determine whether the testimony is

supported by “good grounds,” including: “(1) whether a method consists of a testable

hypothesis; (2) whether the method has been subject to peer review; (3) the known or

potential rate of error; (4) the existence and maintenance of standards controlling the

technique’s operation; (5) whether the method is generally accepted; (6) the

relationship of the technique to methods which have been established to be reliable;

(7) the qualifications of the expert witness testifying based on the methodology; and

(8) the non-judicial uses to which the method has been put.” (citations omitted).

DISCUSSION & ANALYSIS

MET argues that Mr. Schmitt’s opinions (1) are on topics beyond his

qualifications; (2) use unreliable methodology for calculating damages; and (3) fail

Rule 403 balancing because they present a serious risk of confusing the jury and are

unfairly prejudicial. ECF 262. The Court will address each argument in turn.

I. Mr. Schmitt has not opined on topics beyond his expertise.

MET claims that Mr. Schmitt offered opinions that he was unqualified to give,

regarding: (1) the appropriate time frame for measuring damages arising out of false

advertising; (2) the value of Under Armour’s brand and how that value reduced the

amount of profit realized from false advertising; (3) the impact of Under Armour’s

advertisements beyond the alleged false statements; and (4) reasons as to why Under

Armour would or wouldn’t enter into a contract with MET. ECF 262, p. 8.

. Based on evidence in the record and

“[f]or purposes of [his] analysis, Mr. Schmitt “assume[d] that a potential

disgorgement of [Under Armour] profits attributable to the alleged false advertising

would be limited to sales of Recover products…for the period from July 1, 2017 to

December 31, 2020.” ECF 262-3, ¶ 54.

This assumption as to the appropriate time frame is perfectly acceptable. MET

confuses Mr. Schmitt’s for calculating Under Armour’s profits

attributable to false advertising as an opinion about marketing and advertising. His

assumption about the appropriate time frame for measuring damages is based on

evidence in the record— ., specifically, based on responses to interrogatories

indicating that Under Armour’s advertisements referencing the FDA had ended by

March 2020 and that MET did not identify any specific instances of alleged false

advertising after 2020. ECF 262-3, ¶ 52. The assumption is therefore permissible.

., No. 15-921, 2021 WL 2778562, at

*31 (E.D. Pa. July 2, 2021) (“[C]hallenges to the facts and assumptions underlying

the testimony of an expert witness generally go to the weight of the testimony and

not its admissibility,” unless “the data underlying the expert’s opinion are so

unreliable that no reasonable expert could base an opinion on them[.]”(cleaned up));

, 540 F. Supp. 2d 563, 570 (E.D. Pa. 2008) (“The role of a damages

expert is to calculate hypothetical damages given an assumed set of facts; so long as

those assumed facts are reasonably based on the evidence in the record, such

assumptions are permissible.”); ., 295

F.3d 408, 414 (3d Cir. 2002) (“Rule 705, together with Rule 703, places the burden of

exploring the facts and assumptions underlying the testimony of an expert witness

on opposing counsel during cross-examination.”).

. Mr. Schmitt opined that Under Armour’s brand

contributed to Under Armour’s ability to make sales of Recover products. He used

the relief from royalty method to reduce Under Armour’s profits from the sale of

Recover products by the value of the Under Armour brand. ECF 262-3, ¶¶ 67, 73.

MET argues that Mr. Schmitt isn’t qualified to opine on Under Armour’s brand value

or the impact that it had on profits. The Court disagrees.

Mr. Schmitt is a Certified Public Accountant, Certified in Financial Forensics,

and Accredited in Business Valuation. ., ¶ 2. He has extensive experience in

calculating damages—including claims for monetary relief in trademark

infringement, false advertising, and other Lanham Act cases—and in the valuation

of intellectual property, including trademarks and trade names. ., ¶¶ 3-4.

Considering his qualifications, the Court finds that Mr. Schmitt is qualified to opine

on brand valuation and on how Under Armour’s brand and intellectual property

contributed to the profit on sales of Recover products.

., 35 F.3d 717, 741 (3d Cir. 1994) (“[A] broad range of knowledge, skills, and

training qualify an expert as such.”).

. Mr. Schmitt opined that Under Armour’s advertisements for Recover

products “contain additional language and concepts that are not alleged to be false

advertising[,]” such as references to “fast recovery, the use of bioceramic powder, and

the product’s functionality[,]” and, therefore, “[a]ssuming a finding of liability, it is

appropriate to account for the contribution of such language relative to the alleged

false advertising.” ECF 262-3, ¶ 72. The Court finds that, in calculating damages,

Mr. Schmitt is qualified to opine on factors that can appropriately be considered as

part of the disgorgement analysis; contrary to MET’s argument, he did not opine “on

the impact that the advertising at issue had on sales of particular products[,]”

particularly because he did not purport to calculate the amount of profits attributable

to the effect of advertising that is not alleged to be false.3 ECF 262, p. 3. ,

, No. 12-2999, 2023 WL 8714264, at *5 (D.N.J.

Dec. 18, 2023) (allowing expert’s testimony on potential profit disgorgement, in which

expert identified sales subject to disgorgement and then, based on certain

assumptions, estimated the profits to be disgorged therefrom);

., 986 F. Supp. 2d 776, 793 (N.D. Tex. 2013) (“Experts are permitted

to assume the fact of liability and opine about the of damages.” (emphasis

added)).

To the extent that MET is arguing that Mr. Schmitt offers inappropriate

testimony on causation ( ., whether the alleged false advertising caused the claimed

damages), this is a bit of a red herring. As Mr. Schmitt stated in his report and

deposition testimony, his analysis was based on “an assumption that there will be a

finding of liability” and his understanding that, while “the damages expert is not

necessarily opining as to the liability of the alleged act, [the damages expert] cannot

simply calculate damages that are untethered to the act.” ECF 262-3, ¶ 7; ECF 262-

4, 38:1-21. ., No. 15-512, 2017

WL 1319553, at *6 (E.D. Tex. Apr. 10, 2017) (allowing a damages expert in a false

advertising case to testify only about damages while assuming liability);

2021 WL 2778562, at *30, 32 (noting that operating under an assumption

of liability “is not tantamount to offering an opinion as to causation” and finding that

3 MET further argues that Mr. Schmitt has not “offered an appropriate methodology”

for his opinion that it is appropriate to account for the contribution of advertising that

is not false. ECF 262, p. 16. However, Mr. Schmitt is not purporting to calculate the

amount of profits attributable to the effect of advertising that is not alleged to be

false. His statement reflects the principle that “[t]he infringer has the burden to

isolate the profits which are attributable” to the infringement—and it isn’t an opinion

about the impact of Under Armour’s advertising on its sales.

., No. 20-00412, 2023 WL 1778786, at *3 (W.D. Pa. Feb. 6, 2023)

(Horan, J.) (cleaned up).

the damages expert did not purport to offer opinions about causation when he is

“proffered merely as a financial expert whose opinions necessarily rest on

assumptions of causation and liability”).

MET further argues that Mr. Schmitt’s statement about the impact of Under

Armour’s advertisements beyond the alleged false statement is an impermissible

legal conclusion. ECF 287, p. 5. While an expert “cannot usurp the role of the judge

or the jury[,]” an expert’s opinion “may be relevant to the factual aspects of the

analysis leading to [a] legal conclusion.” No. 17-14,

2019 WL 8014103, at *2 (D. Del. June 25, 2019). The Court finds that Mr. Schmitt’s

damages opinion “does not attempt to define the law applicable to the case[.]”

, 2024 WL 3691607, at *14. Rather, the conclusions he drew in

his report—such as the propriety of accounting for the effect of “positive” advertising

when assessing profits for disgorgement—were based on his apportionment analysis

under the Lanham Act. . (finding that damages expert’s disgorgement analysis

did not attempt to define the law, because the Lanham Act “clearly allows for

consideration of revenue and costs and allocates the burden of each party as to

them[,]” the expert testified that she was merely opining on “how economically one

would calculate damages if the goal is to estimate the amount of profit that the

defendant earned due to the alleged misconduct[,]” and her opinion “factor[ed] in the

costs that defendants are allowed to deduct under the Lanham Act” (cleaned up)).

Mr. Schmitt merely opined that the disgorgement calculation can be further reduced

by the profits that are not attributable to the alleged false advertising. This falls into

the category of “facts leading to a legal analysis” and not a “legal conclusion.”4

4 Indeed, without any predicate causation assumptions, Mr. Schmitt’s report would

be deficient. As Mr. Schmitt acknowledged at his deposition, in calculating damages,

and even assuming a finding of liability, the expert must still “ensure that the

damages flow from the alleged wrongful conduct that gave rise to the damages.” ECF

262-4, 37:15-25. . at 180:12-16 (“A damages expert needs to explain what

. MET argues

that Mr. Schmitt inappropriately opined on “reasons as to why Under Armour would

or would not enter into a contract with MET.” ECF 262, p. 8. But the Court reads

Mr. Schmitt’s report differently. Mr. Schmitt instead opined that Mr. Wrobel’s

“reasonably royalty” calculation was speculative because of his assumption that, but

for the alleged misconduct, Under Armour would have entered into an agreement

with MET instead of Hologenix. ECF 262-3, ¶ 80. Mr. Schmitt disputed this

assumption by citing to the record and noting “a number of factors that influenced

[Under Armour’s] decision to switch from” MET to Hologenix “that are independent

of the alleged false advertising or other alleged wrongful conduct.” ., ¶ 81.

The Court finds that, in rebutting Mr. Wrobel’s expert report, Mr. Schmitt

made permissible assumptions that are “reasonably based on the evidence in the

record,” and any weaknesses in the facts and assumptions underlying Mr. Schmitt’s

opinion can be explored on cross-examination. , 540 F. Supp. 2d at 570;

No. 18-1546, 2024 WL 4415194, at *4 (W.D. Pa.

Oct. 4, 2024) (Cercone, J.) (challenges to the data and assumptions underlying

damages expert’s calculations did not warrant excluding his testimony, where it was

sufficiently premised on his knowledge, experience, and facts in the record);

, 2021 WL 2778562, at *29 (permissible for a rebuttal expert to review

opposing party’s expert reports and apply “his experience and training to opine as to

the damages are, why they are appropriate, and how they’re connected to the claim.

Otherwise, what expertise are you providing?”);

., No. 13-2451, 2016 WL 5496340, at *9 (D. Minn. Sept. 28, 2016)

(noting that damages expert’s rebuttal opinions on apportionment of profits are

presumptively admissible and allowing expert to testify on his apportionment

analysis, subject to appropriate objections at trial should his testimony venture into

legal analysis, including any statements characterizing opposing party expert’s

analysis as “incomplete” in terms of its legal burden).

whether those reports are sound”).

II. Mr. Schmitt may use the full absorption method to calculate costs, but

the Court will hold in abeyance its decision on the relief from royalty

method.

A. Full absorption method.

To determine the profits available for disgorgement, Mr. Schmitt applied the

full absorption method, which “deducts the costs that assist in the production,

distribution or sale of the products at issue, irrespective of whether or not such costs

are considered fixed or variable.” ECF 262-3, ¶ 55. Based on a review of Under

Armour’s financial reports and a discussion with an Under Armour employee, he

concluded that certain costs included in Under Armour’s selling, general, and

administrative expenses contributed to the sales of the Recover products at issue, and

deducted these costs from the revenue on Recover products. ., ¶¶ 59-65.

MET argues that Mr. Schmitt’s use of the full absorption method is

inappropriate because Under Armour would have incurred much of those fixed costs

without selling the infringing product, and so the method fails to show that the costs

and profits excluded from the disgorgement analysis are not attributable to the

infringing product. ECF 262, pp. 13-14.

The Court will not exclude Mr. Schmitt’s testimony applying the full

absorption method. Generally, in the context of trademark infringement cases, courts

have used two methods for apportioning costs: the incremental approach, “under

which only direct costs of production are deducted,” and the full absorption approach,

“under which overhead costs are apportioned to production of the infringing item.”

§ 30:68 (5th ed. 2024) (collecting

cases).

Courts within the Third Circuit have permitted the deduction of overhead costs

in infringement cases, where appropriate to do so.5

Nos. 14-7770, 16-4232, 2020 WL 1550804, at *7-8 (D. N.J. Apr. 1, 2020) (in

deciding disgorgement of profits following a finding of liability in trademark

infringement cases, adopting full absorption method over incremental approach

because the full absorption method better reflected the infringing revenues and

expenses—which were derived from a single source—and the overhead expenses were

likely a major factor in generating the infringing revenue),

, 8 F.4th 209 (3d Cir. 2021);

., 967 F. Supp. 1457, 1463 (E.D. Pa. 1997) (at bench trial, rejecting calculation of

profits using full absorption method because the volume of sales of infringing product

as a percentage of total sales was insignificant);

, 770 F. Supp. 1014, 1024 (E.D. Pa. 1991) (recognizing, in calculating

copyright infringement damages, that overhead costs that assist in the production of

5 MET cites to ., 205 F.2d 140 (3d Cir.

1953) for the proposition that courts have “called [the full absorption] method into

question and opined about its inherent risks[.]” ECF 262, p. 12. However, in

, the Third Circuit did not rule out the use of the full absorption method

in infringement cases. Rather, it held that the special master did not err in refusing

to deduct overhead costs in the computation of profits on the infringing products.

, 205 F.2d at 147. The Third Circuit recognized that the method

of deducting overhead costs is used in many accountings, ., to determine an

infringer’s profits. . at 147 & n.18.

the infringement should be taken into account, and which overhead expenses should

be deducted is a factual determination to be made by the special master).6

MET is correct that, for a disgorgement analysis under the Lanham Act, the

infringer “bears the burden of proving all elements of cost or deduction” and “has the

burden to isolate the profits which are attributable to” the infringement.

., 2024 WL 3691607, at *12 (cleaned up);

, 707 F. Supp. 2d 357, 363 (E.D.N.Y. 2010) (in Lanham Act false

advertising case, “[t]he defendant must establish any deductions, including costs and

any apportionment for sales that were not due to the allegedly false or misleading

statements”).

However, MET’s criticisms of Mr. Schmitt’s application of the full absorption

method go to the weight of his testimony rather than admissibility, and are more

appropriately addressed through cross-examination of Mr. Schmitt about his decision

to use the full absorption method (including his decision to include certain categories

of expenses).7 ., No. 319-14,

2024 WL 947475, at *6 (W.D. Ky. Mar. 5, 2024) (expert testimony using the

6 Generally, courts that use the full absorption method require that there be some

sort of connection between the overhead expenses and the infringing sales. ,

., 525 F. Supp. 2d 558, 656 (S.D.N.Y. 2007) (“In

assessing the defendant’s net profit from the infringing sales, courts are to use the

‘full absorption’ method, but only if the defendant proves the connection between a

general expense such as overhead and the infringing sales.”).

7 Having addressed MET’s objections to Mr. Schmitt’s use of the full absorption

method, the Court finds no issues of fit or reliability with his expert testimony on the

full absorption method. His testimony is supported by good grounds demonstrating

reliability, as the method appears to be a generally accepted method of apportioning

costs (which Mr. Schmitt is qualified to opine on) and has been used in infringement

cases. Mr. Schmitt also sufficiently explains the basis underlying his decision to

include certain categories of expenses in his calculations, ., his discussions with an

Under Armour employee and his review of a detailed summary of Under Armour’s

income statements. ECF 262-3, ¶¶ 63-64. So his testimony fits the facts of this

case.

incremental approach is not excluded on motion, because the Sixth Circuit

has not adopted either the full absorption approach or the incremental approach,

which approach is preferable depends on the facts of each case, and any objections to

expert’s methodology can be addressed through cross-examination);

, No. 156015, 2023 WL 7001358, at *8-9 (E.D.N.Y. July 28,

2023) (on motion, allowing defendants’ expert to use full absorption method

to determine profits, and holding that, for purposes, “both the full absorption

and the incremental accounting methods generally fit the facts of this case”);

, , No. 13-2451, 2016 WL 5496340, at *10 (D.

Minn. Sept. 28, 2016) (declining to rule, on motion, whether damages

expert’s inclusion of fixed or indirect costs in his deduction analysis are appropriate

and finding that the issue of disgorgement damages and what costs can be deducted

is more appropriately addressed after trial).

B. Relief from royalty method.

To value the contribution of Under Armour’s intellectual property to the sale

of its products, Mr. Schmitt used the relief from royalty method. Under this method,

he applied a “market-based royalty for the subject intellectual property at issue as a

reasonable proxy for the profit or value it contributes to the sale of products that use

the intellectual property.” ECF 262-3, ¶ 73. To establish what the applicable royalty

rate would be for the Under Armour brand, he looked at one instance in which Under

Armour licensed its name and logo to an apparel distributor, through which Under

Armour received a 14% royalty of the net revenue of apparel sold with its name or

logo. ., ¶ 74. He then reduced Under Armour’s profits from the sale of Recover

products by 14%, to reflect the royalty that Under Armour “was relieved from paying

by virtue of owning its brand.”

MET argues that Mr. Schmitt’s use of the relief from royalty method was

improper because a hypothetical royalty amount isn’t a proper deduction in

evaluating Lanham Act damages ( ., the “value of the brand” is not a legitimate

deduction from profits because Under Armour did not pay to license its brand, and

therefore, there is no “cost” to deduct). ECF 262, pp. 15-16; ECF 287, p. 9.8 Under

Armour contends that the relief from royalty method is “a valuation technique that

recognizes that the owner of intellectual property…generates a profit from use of that

property without paying a license fee or royalty” and that the method is “often

expressed as a percentage of revenue that the subject entity that owns or operates

the intangible asset would be obligated to pay to a hypothetical third-party licensor

for the use of that intangible asset.” ECF 275, p. 9 (cleaned up).

At this juncture, there are open issues regarding Mr. Schmitt’s use of the relief

from royalty method, which require further explanation. While Under Armour

argues that “courts accept the apportionment of profits for contributions made by a

defendant in generating those profits[,]” it has not sufficiently established that the

relief from royalty method has been subject to peer review, or that the relief from

royalty method is a generally accepted method for calculating proper costs or

deductions in the Lanham Act context. ECF 275, p. 10. Under Armour has not cited

to any cases applying the relief from royalty method to reduce the disgorgement of

profits under the Lanham Act (or any cases recognizing the value of a business’s

brand or intellectual property as a proper deduction under the Lanham Act

8 MET also takes issue with Mr. Schmitt’s failure to perform any analysis that “would

compare [the] purported brand value to the impact of the false advertisements at

issue[.]” ECF 262, p. 15. However, this argument appears to miss Mr. Schmitt’s

purpose for using the relief from royalty method. Mr. Schmitt’s “objective was not to

compare how much [of sales of Recover products] was attributable to the brand versus

the false advertising.” ECF 275-1, 152:16-163:12. Mr. Schmitt instead used the relief

from royalty method to “reduce the profit that is calculated to recognize the value

contributed by Under Armour’s brand to the sale”—so this deduction applies for all

sales, irrespective of any false advertising, and without any consideration for

apportionment of the profit due to attributes that are unrelated to false advertising.

at 154:2-155:14; ECF 262-4, 175:22-25.

disgorgement analysis), and the Court has not found any such cases.

While the novelty of Mr. Schmitt’s methodology—to the extent that it is

novel—is “not a reason for exclusion,” the Court does not have a basis to decide

whether Mr. Schmitt’s methodology is sufficiently reliable.

., 2024 WL 3691607, at *10-11 (excluding expert opinion that used a novel method

of calculating trademark infringement damages, because it was “not demonstrably

tethered to a reliable methodology that fits this case and lack[ed] support beyond [the

expert’s] faith in his own calculations,” and because “this method has never been used

to calculate trademark infringement damages in any case, has no professional or

academic recognition, and has not been the subject of any level of peer review”);

., No. 20-00412, 2023 WL 1778786, at

*5 (W.D. Pa. Feb. 6, 2023) (Horan, J.) (damages expert’s theory of profit disgorgement

was unreliable and did not fit the facts of the case because his methodology did not

consist of a testable hypothesis; was not subject to peer review, generally accepted, or

put to nonjudicial uses; relied on outdated survey data and untested proxies; and

wouldn’t assist the court in determining the disgorgement of profits).

Accordingly, at this time, the Court declines to rule on whether Mr. Schmitt’s

testimony applying the relief from royalty method should be excluded. The Court

intends to hold an hearing—either at the final pre-trial conference or at

trial, with Mr. Schmitt in appearance—as to the relief from royalty methodology and

its reliability. ., 234 F.3d 136, 152-53 (3d Cir. 2000)

(suggesting hearing when the reasons and foundations for an expert’s

opinion are inadequately or confusingly explicated, such that the district court has

no way of determining how the expert arrived at his conclusions).

III. The Court won’t exclude Mr. Schmitt’s report and testimony under

Rule 403.

Lastly, MET argues that, based on the purported deficiencies set forth above,

Mr. Schmitt’s report and testimony present a serious risk of confusing the jury and

prejudicing MET. ECF 262, at pp. 16-17 (citing Fed. R. Evid. 403).

Balancing the probative value against the prejudice, the Court finds that the

probative value of Mr. Schmitt’s expert opinions (on which Under Armour relies for

its damages analysis) is high, and there is no danger of unfair prejudice.

, 365 F.3d 215, 244 (3d Cir. 2004) (“As long as an expert’s scientific

testimony rests upon good grounds, based on what is known, it should be tested by

the adversary process–competing expert testimony and active cross–examination–

rather than excluded from jurors’ scrutiny for fear that they will not grasp its

complexities or satisfactorily weigh its inadequacies.” (cleaned up)). To the extent

there might be any confusion or potential prejudice, the Court is open to curative jury

instructions to assist the jury. ,

No. 06-0620, 2015 WL 5767415, at *20 (E.D. Pa. July 29, 2015) (“[T]o reduce any

potential prejudice to the defendants, the jury may be instructed at trial regarding

the proper limits of [the] expert testimony.”).

CONCLUSION

For the reasons discussed above, the Court will leave open the issue of whether

Mr. Schmitt’s application of the relief from royalty methodology is admissible under

Rule 702, but will deny MET’s motion to exclude Mr. Schmitt’s expert report and

testimony in all other respects. ECF 261. An appropriate order follows.

DATED: January 13, 2025 BY THE COURT:

/s/

United States District Judge