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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 15-3198 & 15-3247
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ANDREW PAUL LEONARD,
d/b/a APL Microscopic
Appellant in No. 15-3247
v.
STEMTECH INTERNATIONAL INC;
STEMTECH HEALTHSCIENCES, INC.;
JOHN DOES 1-100, Inclusive,
Stemtech International Inc and
Stemtech HealthSciences, Inc,
Appellants in No. 15-3198
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ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Nos. 1-08-cv-00067, 1-12-cv-00086)
District Judge: Honorable Leonard P. Stark
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Argued July 12, 2016
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Before: FUENTES, SHWARTZ, and RESTREPO, Circuit
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Judges.
(Filed: August 24, 2016)
Kathleen M. Kushi Carter, Esq [ARGUED]
Christine R. Arnold, Esq.
Hollins Law
2601 Main Street
Suite 1300
Irvine, CA 92614
Thomas P. Leff, Esq.
Casarino Christman Shalk Ransom & Doss
405 North King Street
Suite 300, P.O. Box 1276
Wilmington, DE 19899
Counsel for Appellants/Cross-Appellees
Jan I. Berlage, Esq. [ARGUED]
Gohn Hankey Stichel & Berlage
201 North Charles Street
Suite 2101
Baltimore, MD 21201
James S. Green, Sr., Esq.
Jared Green, Esq.
Seitz Van Ogtrop & Green
222 Delaware Avenue
Suite 1500, P.O. Box 68
Wilmington, DE 19899
Counsel for Appellee/Cross-Appellant
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Source.
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C. Damages
1. The Jury Award
Stemtech argues that the jurys $1.6 million actual
damages award was unconstitutionally and grossly excessive,
and therefore should be reduced or vacated and remanded for
a new damages trial. We will first discuss the methods for
calculating actual damages under the Copyright Act, then
review the District Courts decision to permit Leonards
damages expert to testify, and finally examine whether the
award here was unconstitutionally or grossly excessive.
a. Actual Damages under 504(b)
Section 504 of the Copyright Act authorizes recovery
of the actual damages suffered by [the copyright owner] as a
result of the infringement. 17 U.S.C. 504(b). Although
the Act does not define actual damages, our sister circuits
have explained that an actual damages award looks at the
facts from the point of view of the[] copyright owners; it
undertakes to compensate the owner for any harm he suffered
by reason of the infringers illegal act. On Davis v. The
Gap, Inc., 246 F.3d 152, 159 (2d Cir. 2001). These damages
are usually determined by the loss in the fair market value of
the copyright, measured by the profits lost due to the
infringement or by the value of the use of the copyrighted
work to the infringer. McRoberts Software, Inc. v. Media
100, Inc., 329 F.3d 557, 566 (7th Cir. 2003); see Fitzgerald
Publg Co. v. Baylor Publg Co., 807 F.2d 1110, 1118 (2d
Cir. 1986) ([T]he primary measure of recovery is the extent
to which the market value of the copyrighted work at the time
of the infringement has been injured or destroyed by the
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infringement.) (citing 3 Nimmer on Copyright 14.02 at 146); Dash v. Mayweather, 731 F.3d 303, 312 (4th Cir. 2013)
(quoting Fitzgerald, supra). Because the Act should be
broadly construed to favor victims of infringement, On
Davis, 246 F.3d at 164, uncertainty will not preclude a
recovery of actual damages if the uncertainty is as to amount,
but not as to the fact that actual damages are attributable to
the infringement, 4 Nimmer on Copyright 14.02[A], at 1214; see, e.g., On Davis, 246 F.3d at 166 (explaining that the
jurys calculation of actual damages may not be based on
undue speculation (internal quotation marks omitted));
Sygma Photo News, Inc. v. High Soc. Magazine, Inc., 778
F.2d 89, 95 (2d Cir. 1985) (Confronted with imprecision in
the computation of expenses, the court should err on the side
of guaranteeing the plaintiff a full recovery.). Some
uncertainty stems from the fact that the Copyright Act does
not specify how damages should be calculated.
See
Mayweather, 731 F.3d at 312. Case law, however, describes
the permissible methods for determining damages.
One method involves calculating the fair market value
of the licensing fees the owner was entitled to charge for
such use. On Davis, 246 F.3d at 165 (explaining that [i]f a
copier of protected work, instead of obtaining permission and
paying the fee, proceeds without permission and without
compensating the owner . . . the owner has suffered damages
to the extent of the infringers taking without paying what the
owner was legally entitled to exact a fee for). Fair market
value is often described as the reasonable licensing fee on
which a willing buyer and a willing seller would have agreed
for the use taken by the infringer. Id. at 167; see Jarvis v.
K2 Inc., 486 F.3d 526, 534 (9th Cir. 2007) (applying
standard); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir.
2002) (noting that the market value approach is an objective,
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Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983)
(Where there is a logical basis for an experts opinion
testimony, the credibility and weight of that testimony is to be
determined by the jury, not the trial judge.). Thus, the
District Court appropriately denied the Daubert motion, and
the jury was properly permitted to consider Sedliks
testimony about damages.
c. Excessiveness
Because we are deferential to a jurys damages verdict,
that verdict may be disturbed only if it is so grossly excessive
that it shocks the judicial conscience, William A. Graham Co.
v. Haughey, 646 F.3d 138, 142 (3d Cir. 2011) (Graham II), or
if it is unconstitutionally excessive because it is predicated on
an impermissible basis, Cortez v. Trans Union, LLC, 617
F.3d 688, 715-18 (3d Cir. 2010). With respect to a claim that
a damage award is grossly excessive, our review is
exceedingly narrow and our responsibility [is] to review a
damage award to determine if it is rationally based. Id. at
718. This standard exists to ensure that a district court does
not substitute its judgment of the facts and the credibility of
the witnesses for that of the jury, and is even more pressing
at the appellate level, where the judges have not had the
opportunity to observe the trial. Graham II, 646 F.3d at 143
(internal quotation marks omitted). Thus, although we view
the facts in the light most favorable to the defendant,
Cortez, 617 F.3d at 719, [a] jurys damages award will not
be upset so long as there exists sufficient evidence on the
record, which if accepted by the jury, would sustain the
award, Thabault v. Chait, 541 F.3d 512, 532 (3d Cir. 2008).
If a court determines that the amount of the award is
inconsistent with the evidence in a case, it must offer a new
trial as a[] [conditional] alternative to a reduction in the award
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Leonard that this case does not involve the use of a multiplier
to penalize unauthorized use. Rather, the record demonstrates
that the multiplier here was used to calculate fair market
value.
The jury had sufficient evidence to credit Sedliks
opinion and conclude that the sum calculated from the stock
photo agency rates did not represent a full calculation of the
fair market value of Leonards images because the rates did
not account for scarcity and exclusivity. Put differently,
Sedliks fair market value calculation in this case had two
components: the stock agency quotes and the adjustments to
reflect the uniqueness of the images and the impact of
Stemtechs usage. The multipliers here reflected a premium
that, according to Sedlik, the market would find acceptable
given the scarcity and exclusivity of the images as compared
to the images for which he had secured rates for comparative
purposes. The unrebutted evidence here showed that the fair
market value calculation was complete only after these
additional factors were applied.
Since Stemtech presented no evidence or methodology
to cast doubt on the use of multipliers to account for factors
relevant to a final fair market value, neither the District Court
nor the jury had any basis to discount this aspect of Sedliks
testimony. Because there is no evidence that the scarcity and
exclusivity multipliers were punitive rather than valid factors
for calculating fair market value, we cannot say that the
verdict is based upon an improper consideration.15
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D. Trial Issues
Stemtech also asserts that it is entitled to a new trial
based upon alleged improper conduct by Leonards counsel
and the erroneous admission of certain evidence. We will
address these contentions in turn.
1. Counsels Conduct
Stemtech complains that Leonards counsel made
comments during the trial that so prejudiced the jury that the
District Court should have granted a new trial. Counsels
conduct constitutes reversible error only where he or she
engaged in argument injecting prejudicial extraneous
evidence, Fineman v. Armstrong World Indus., Inc., 980
F.2d 171, 210 (3d Cir. 1992), such that the improper
statements . . . so pervade[d] the trial as to render the verdict a
product of prejudice, Draper v. Airco, Inc., 580 F.2d 91, 96
(3d Cir. 1978). Because the trial judge was present and able
to judge the impact of counsels remarks, we defer to his
assessment of the prejudicial impact. Fineman, 980 F.2d at
207; Draper, 580 F.2d at 94 (recognizing that the trial judge
has considerable discretion in determining whether conduct
by counsel is so prejudicial as to require a new trial). We
thus review the decision to grant or deny a motion for a new
trial based upon counsels conduct for abuse of discretion.
Fineman, 980 F.2d at 206.
alternate approaches); see also Kansas, 533 U.S. at 11
(concluding special master did not err in determining that
considerations of fairness . . . supported the award of at least
some prejudgment interest (emphasis added) (internal
quotation marks omitted)).
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For these reasons, the District Court did not abuse its
discretion in determining that none of Leonards counsels
conduct warrants a new trial.
2. Evidentiary Rulings
The final basis for Stemtechs motion for a new trial is
that the District Court erred in admitting certain evidence.
Under Fed. R. Evid. 103 and Fed. R. Civ. P. 61, a finding of
reversible error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the
party is affected. Becker v. ARCO Chem. Co., 207 F.3d
176, 180 (3d Cir. 2000) (internal quotation marks omitted);
Goodman v. Pa. Tpk. Commn, 293 F.3d 655, 676 (3d Cir.
2002) (A motion for a new trial should be granted where
substantial errors occurred in admission or rejection of
evidence.). In the context of evidentiary issues raised in
support of a request for a new trial, particular deference is
appropriate where the decision to grant or deny a new trial
rested on the district courts evidentiary ruling that itself was
entrusted to the trial courts discretion. Becker, 207 F.3d at
180 (internal quotation marks omitted).
We review preserved evidentiary objections for abuse
of discretion. McKenna v. City of Phila., 582 F.3d 447, 460
(3d Cir. 2009). Where, however, a party failed to object to
the admission of evidence before the District Court, we deem
that objection waived on appeal. See Lloyd v. HOVENSA,
LLC, 369 F.3d 263, 272-73 (3d Cir. 2004) (observing that it
is inappropriate for an appellate court to consider a contention
instructions.
(1987).
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