Federal Circuit Affirms Damages After Daubert Challenge to Marketing Expert Witness in Patent Dispute

In the recent case of Dynamite Marketing, Inc. v. The WowLine, Inc., No. 24-1523 (Fed. Cir. 2025), the United States Court of Appeals for the Federal Circuit addressed the admissibility and impact of testimony from a Marketing Expert Witness in a complex patent infringement litigation. The case provides a clear illustration of how federal courts scrutinize expert witness qualifications and methodologies under Daubert, particularly in the context of lost profits damages.

Background and Parties

Dynamite Marketing, Inc. (“Dynamite”) brought suit against The WowLine, Inc. (“Sherman”) alleging infringement of a design patent. The dispute centered on whether Sherman’s product infringed Dynamite’s patent and, if so, the appropriate measure of damages. Dynamite sought lost profits under 35 U.S.C. § 284, while Sherman contended that its own profits from the alleged infringement should serve as the damages benchmark.

Role and Methods of the Marketing Expert Witness

Dynamite presented its damages case through its Marketing Expert Witness, Ms. Kimberly Schenk. Ms. Schenk applied the well-established Panduit test, which requires a plaintiff to prove: (1) demand for the patented product, (2) absence of acceptable non-infringing substitutes, (3) manufacturing and marketing capability to exploit demand, and (4) the amount of profit the patentee would have made. Ms. Schenk’s analysis included market demand assessments, evaluation of product substitutability, and detailed financial modeling to quantify lost profits attributable to the infringement.

Daubert Reliability Analysis

Sherman challenged Ms. Schenk’s credentials and methodology under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that her opinions were unreliable and should be excluded. The District Court conducted a thorough Daubert analysis, examining both her qualifications and the soundness of her application of the Panduit factors. The court found Ms. Schenk’s credentials as a marketing and damages expert to be robust, and her methodology—grounded in accepted economic and marketing principles—sufficiently reliable for presentation to the jury.

The District Court denied Sherman’s motion to exclude Ms. Schenk’s testimony, both during trial and in post-verdict motions. The court emphasized that Sherman’s criticisms went to the weight, not the admissibility, of the expert’s opinions. On appeal, Sherman did not contest the Daubert rulings, instead focusing on the application of the Panduit factors and the sufficiency of the evidence supporting the lost profits award.

Impact of the Expert Testimony on the Outcome

Ms. Schenk’s testimony was pivotal in establishing Dynamite’s entitlement to lost profits. The jury credited her analysis, resulting in a substantial damages award in Dynamite’s favor. The District Court, in denying Sherman’s post-verdict motions, specifically referenced Ms. Schenk’s credible and methodologically sound testimony as the foundation for the jury’s verdict.

The Federal Circuit affirmed the District Court’s rulings in all respects, including the admission of Ms. Schenk’s expert testimony and the resulting damages award. The appellate court found no error in the District Court’s Daubert analysis or its application of the Panduit test, and it upheld the jury’s reliance on the Marketing Expert Witness’s opinions in determining the quantum of damages.

Conclusion

This case underscores the critical role a qualified Marketing Expert Witness can play in patent litigation, particularly in quantifying lost profits. The courts’ rigorous Daubert analysis ensured that only reliable, methodologically sound expert testimony reached the jury, directly influencing the outcome and affirming the importance of expert credibility and analytical rigor in complex commercial disputes.