1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FORD MOTOR COMPANY, 

 Plaintiff, Case No. 15-cv-10628 

 (consolidated with Case No. 15-11624) 

v. Hon. Matthew F. Leitman 

VERSATA SOFTWARE, INC. et al.

 Defendants. 

__________________________________________________________________/ 

ORDER DENYING PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE 

DEFENDANTS FROM RELYING ON CONTRACT DAMAGES 

THEORIES (ECF No. 803) 

 On February 11, 2022, Plaintiff Ford Motor Company filed a motion in limine

to preclude Defendants Versata Software, Inc., Trilogy Development Group, Inc., 

and Trilogy, Inc. (collectively, “Versata”) “from offering argument, testimony, or 

other evidence of contract damages” at trial. (Mot., ECF No. 803, PageID.56461.) 

The Court held a hearing on Ford’s motion on April 8, 2022. (See 4/8/2022 Hr’g Tr., 

ECF No 815.) For the reasons explained below, the motion is DENIED. 

I 

Versata alleges that Ford breached the parties’ contract by, among other 

things, using Versata’s software after the contract expired. Versata seeks at least 

$17 million per year in damages for the alleged breaches. This damages theory rests 

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upon Versata’s contention that Ford would have paid at least $17 million per year to 

continue to use Versata’s software following the expiration of the contract. 

Ford moves to preclude Versata from presenting this damages theory to the 

jury on two primary grounds. The Court will explain each ground in detail below. 

Neither persuades the Court that it should bar Versata from presenting its damages 

theory and evidence to the jury. 

A 

Ford first argues that the Court should preclude Versata from presenting its 

damages theory and supporting evidence at trial because Versata failed to timely and 

properly disclose the theory and evidence during discovery. (See Mot., ECF No. 803, 

PageID.56461–56472, 56477–56479.) While Versata’s disclosures were far from 

perfect, the Court concludes that they were minimally sufficient. It would therefore 

be inappropriate to bar Versata from presenting its damages theory to the jury on the 

ground advanced by Ford. 

Versata made disclosures concerning its damages theory at several different 

points during the discovery period. First, in 2017, Versata explained in a 

supplemental interrogatory response that “Ford has breached its contract with 

Versata by, at a minimum, continuing to use Versata’s software beyond the term of 

the relevant licenses and by using Versata’s software beyond the scope of Ford’s 

licenses.” (ECF No. 803-2, PageID.56494.) Then, in a 2017 expert report authored 

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by Dr. Craig Elson, one of Versata’s damages experts, Dr. Elson stated that 

“[q]uantitatively, the damages associated with certain of Versata’s breach of contract 

claims (assuming liability) are subsumed in the trade secret misappropriation 

damages quantified herein.” (Dr. Elson Rpt., ECF No. 803-11, PageID.56546 at 

fn.4.) In a second report jointly authored by Dr. Elson and Christopher Bokhart 

(another of Versata’s experts) in 2018, Dr. Elson and Bokhart explained that “if 

[Ford’s] unauthorized use [of Versata’s software] is alternatively (or additionally) 

considered a breach of existing license agreements, reasonable royalty damages as 

calculated herein would also be reflective of damages under that construct.” (Dr. 

Elson and Bokart Rpt., ECF No. 573-2, PageID.43168 at fn. 11.) The “reasonable 

royalty damages” identified in Dr. Elson and Bokhart’s report were $17 million per 

year. (See id., PageID.43232, 43238.) Dr. Elson and Bokhart explained that they 

based that amount, in part, on discussions with Mike Richards, a Versata employee 

who was involved in the license negotiations with Ford. Richards told Dr. Elson and 

Bokhart that Ford was willing to pay a license fee of $17 million for a one-year 

license of Versata’s software. (See id., PageID.43193, 43196.) 

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Finally, on March 12, 2019, Versata served an additional supplemental 

interrogatory response on Ford.1

 In that response, Versata explained its theory of 

contract damages in more detail: 

Versata states that Ford has breached its contract with 

Versata by, at a minimum, continuing to use Versata’s 

software beyond the term of the relevant licenses and by 

using Versata’s software beyond the scope of Ford’s 

licenses. In connection with its breach of contract cause of 

action, Versata seeks actual damages, including damages 

suffered by Versata due to Ford’s failure to abide by 

provisions prohibiting the disclosure of Versata’s 

confidential information and Ford’s reverse engineering of 

Versata’s software. Versata was damaged by not being 

allowed to negotiate the fee that it would have charged to 

give Ford a right to reverse engineer Versata’s software or 

to disclose Versata’s software to unauthorized employees 

and contractors, including companies specifically 

identified as competitors in the relevant agreements. 

Damages calculations and evidence material to those 

calculations are the domain of expert testimony, and 

Versata will supplement its response in accordance with 

the court’s deadline for the submission of expert reports. 

1

 Ford insists that Versata’s March 12 supplemental interrogatory response was 

“belated” and “untimely.” (Mot., ECF No. 803, PageID.56470-56471.) The Court 

disagrees. Versata served the supplemental interrogatory response at 7:22 p.m. on 

March 12, 2019, the day discovery closed. Ford has not identified any authority 

holding that discovery served on the final day of a discovery cutoff period, as 

opposed to after that date, is considered untimely. Moreover, Ford has not disputed 

Versata’s contention that Ford also served a number of supplemental discovery 

responses on the final day of the discovery period. 

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(Versata Supp. Interrogatory Resp., ECF No. 803-15, PageID.56570–56571.) 

Versata further told Ford that it was seeking at least $17 million per year in contract 

damages: 

Versata incorporates the expert reports and deposition 

testimony of Craig Elson, Christopher Bokhart, and Sam 

Malek and the October 9, 2018 declaration and deposition 

testimony of Seth Krauss. Regarding Versata’s breach of 

contract claim, Versata further states that the evidence 

shows that Ford was willing to pay $17 million for a oneyear extension of its license to ACM and MCA under the 

MSSA and Versata is entitled to recover at least this 

amount for every year or part of a year that Ford continued 

to use Versata confidential information in violation of its 

license. In addition, Versata is entitled to the reasonable 

royalty damages calculated by Mr. Elson and Mr. Bokhart 

for continued use of Versata’s trade secrets and patented 

technologies in violation of the license. 

(Id., PageID.56571–56572.) 

 The Court concludes, based on the totality of these disclosures, that Versata 

sufficiently revealed its contract damages theory and evidence to Ford. The Court 

acknowledges that the disclosures were imperfect. The timing and level of detail in 

Versata’s disclosures is subject to reasonable criticism. Moreover, Versata 

repeatedly indicated during discovery that its contract damages would be established 

by expert testimony even though the theory actually rests almost exclusively on 

anticipated testimony from lay witness Mike Richards. However, for all of the 

reasons explained above, the Court cannot accept Ford’s contention that Versata so 

completely failed to disclose its damages theory and supporting evidence such that 

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the Court should preclude Versata from presenting its theory and evidence to the 

jury. 

 Furthermore, the Court is not persuaded by Ford’s contention that it will suffer 

substantial unfair prejudice if the Court permits Versata to present its allegedlyundisclosed damages theory at trial. Ford insists that by “waiting until 7:22 p.m. the 

day fact and expert discovery ended [to disclose its contract damages theory and 

evidence to Ford], Versata said, effectively, ‘gotcha, we now base contract damages 

on an (undisclosed) witness who will say ‘Ford was willing to pay $17 million’ and 

we demand[ed] ‘at least’ that much.’ ... [T]hat prejudiced Ford because it was 

prevented from conducting fact discovery regarding these issues.’” (Ford Reply Br., 

ECF No. 810, PageID.56947; internal punctuation and citation omitted.) Ford 

contends that this would be “trial by ambush.” (4/8/2022 Hr’g Tr., ECF No. 815, 

PageID.56993.) 

The Court disagrees for two reasons. First, for all of the reasons explained 

above, the Court concludes that Versata’s disclosures – while far from ideal – 

sufficiently disclosed its damages theory and evidentiary support to Ford. Moreover, 

contrary to Ford’s assertion here, the witness who, according to Versata, will testify 

“Ford was willing to pay $17 million” was not “undisclosed.” Versata disclosed that 

Mike Richards would be that witness. Dr. Elson and Bokhart, two of Versata’s 

experts, identified Richards as the source of that contention in their 2018 expert 

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report. (See, e.g., Dr. Elson and Bokart Rpt., ECF No. 573-2, PageID.43193 at fn. 

110; PageID.43196.) And Ford has previously recognized that Dr. Elson and 

Bokhart had identified Richards as the source for $17 million per year figure. (See 

Ford Mot., ECF No. 707, PageID.53020: “According to Elson, Versata’s assertion 

that Ford was ‘willing to pay’ $17 million stems from a conversation Elson had with 

Versata’s contract manager for the Ford account, Mike Richards”). 

Second, the Court can and will mitigate any possible prejudice from a “trial 

by ambush” by allowing Ford to re-depose Richards. By questioning Richards 

concerning the facts underlying Versata’s contract damages theory, Ford can avoid 

the “ambush” it fears. Versata shall therefore make Richards available for a 

deposition within the next 30 days. The deposition shall last for no more than 90 

minutes and shall be limited to questions regarding Versata’s breach of contract 

damages theory and evidence. 

Finally, the Court turns to Ford’s contention that the decision in MLC 

Intellectual Prop., LLC v. Micron Tech., Inc., 10 F.4th 1358 (Fed. Cir. 2021), 

compels the Court to bar Versata from presenting its damages theory at trial on the 

basis that Versata did not sufficiently disclose that theory and the supporting 

evidence. (See Ford Mot., ECF No. 803, PageID.56480.) The Court finds MLC to 

be distinguishable. In MLC, the district court precluded the plaintiff from presenting 

expert testimony from a particular witness on the ground that the plaintiff failed to 

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disclose the facts underlying the expert’s opinion during fact discovery. See id. at 

1369. On appeal, the plaintiff “primarily argue[d] that [under Rule 26 of the Federal 

Rules of Civil Procedure] it was not required to disclose the[] specific facts and 

documents supporting its damages theory during fact discovery because it ultimately 

disclosed them during expert discovery.” Id. The Federal Circuit disagreed and 

“reject[ed]” the plaintiff’s “narrow reading of Rule 26.” Id. at 1371. The court held 

that “the district court was within its discretion in determining that, though [plaintiff] 

was not required to disclose its expert opinions during fact discovery, it was still 

required to disclose” during fact discovery certain key evidence that ultimately 

formed the foundation for the expert’s opinion. Id.

In contrast to MLC, this case does not present any question concerning the 

proper interpretation of Rule 26. More importantly, unlike the plaintiff in MLC (and 

as described above), during the fact discovery period Versata did disclose its 

damages theory (albeit imperfectly) and did identify Mike Richards as the witness 

with information concerning Ford’s alleged willingness to pay $17 million per year 

for the continued use of Versata’s software. For these reasons, MLC does not 

persuade the Court that it should bar Versata from presenting its damages theory at 

trial. 

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For all of these reasons, the Court declines to prohibit Versata from presenting 

its breach of contract theory and supporting evidence at trial on the basis that it failed 

to disclose the theory and evidence during discovery. 

B 

Ford next argues that the Court should preclude Versata from seeking contract 

damages because Versata’s damages theory “lacks any evidentiary support.” (Ford 

Reply Br., ECF No. 810, PageID.56939.) Ford says that the theory rests entirely 

upon Versata’s contention that Ford was willing to pay $17 million per year to 

continue to use Versata’s software, and Ford says that “[t]here is no evidence” it was 

willing to pay that amount. (Id.) Thus, Ford says, “[b]ecause Versata has no 

admissible evidence on which to base its alleged contract damages, the Court should 

exclude that damages theory at trial.” (Id.) 

 Ford’s “lack of evidence” argument belongs in a motion for summary 

judgment, not in a motion in limine. “Unlike a summary judgment motion, which is 

designed to eliminate a trial in cases where there are no genuine issues of material 

fact, a motion in limine is designed to narrow the evidentiary issues for trial and to 

eliminate unnecessary trial interruptions.” Louzon v. Ford Motor Co., 718 F.3d 556, 

561 (6th Cir. 2003). “In other words, a mechanism already exists in civil actions to 

resolve non-evidentiary matters prior to trial—the summary-judgment motion. 

Allowing a party to litigate matters that have been or should have been resolved at 

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an earlier stage not only allows those dissatisfied with the court’s initial ruling a 

chance to relitigate, but also deprives their opponents of the procedural protections 

that attach at summary judgment.” Id. Thus, “[w]here, as here, the motion in limine

is no more than a rephrased summary-judgment motion, the motion should not be 

considered.” Id. at 563.2

 Indeed, Ford previously presented the same “lack of 

evidence” argument in its motion for summary judgment (more on that below). (See 

Ford Mot. for Summ. J., ECF No. 707, PageID.530022, arguing that “the Court 

should enter summary judgment in Ford’s favor” on Versata’s breach of contract 

claims because “Versata has no proof of damages resulting from any of the alleged 

breaches”). Because Ford’s “lack of evidence” argument is in effect another request 

2 See also 75 Am. Jur. 2d Trial § 42 (2022) (“The use of motions in limine to 

summarily dismiss a portion of a claim has been condemned, and the trial courts are 

cautioned not to allow motions in limine to be used as unwritten and unnoticed 

motions for summary judgment or motions to dismiss.”); WEL Cos., Inc. v. Haldex 

Brake Prods. Corp., 467 F. Supp. 3d 545, 555–56 (S.D. Ohio 2020) (denying motion 

in limine that asked the court to “exclude all evidence of damages” because motion 

was “in effect a motion for summary judgment”); Figgins v. Advance America Cash 

Advance Ctrs. of Michigan, Inc., 482 F. Supp. 2d 861, 870 (E.D. Mich. 2007) 

(denying motion in limine to prevent plaintiff from seeking punitive damages and 

holding that “[t]o the extent that the defendants are arguing that the facts are 

insufficient to allow the plaintiff to seek punitive damages from the jury, that 

argument must be rejected because it should have been raised in a motion for 

summary judgment” and not as a motion in limine); Ordos City Hawtai Autobody 

Co. Ltd. v. Diamond Rigging Co., LLC, 2015 WL 6865931, at ** 1, 6–7 (E.D. Mich. 

Nov. 9, 2015) (holding that court would “not entertain” “untimely summary 

judgment arguments” raised in motion in limine and explaining that “[a] motion in 

limine is not a vehicle for filing what is, in substance, an untimely motion for 

summary judgment”). 

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for summary judgment, the Court will not consider it at the motion in limine stage 

of these proceedings. 

 Ford counters that under MLC, supra, its “lack of evidence” argument is 

properly brought as a motion in limine. Ford contends that MLC stands for the 

proposition that a party may bring “as a proper motion in limine” a motion to 

“exclude damages theories that are unsupported by underlying evidence.” (4/8/2022 

Hr’g Tr., ECF No. 815, PageID.56973.) The Court disagrees. In the portions of 

MLC upon which Ford relies (which differ from the portion of the decision 

concerning lack of disclosure, discussed above), the court did not hold that a 

summary-judgment like argument is properly presented in a motion in limine. 

Instead, the Federal Circuit held that the district court properly excluded an expert’s 

damages opinion under Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), 

because the opinion did not rest upon a reliable foundation. See MLC, 104 F.4th at 

1367–69, 1373–76. The court did not suggest that a lack-of-evidence argument may 

be brought as a motion in limine long after the deadlines to file summary judgment 

and Daubert motions have expired. Moreover, in other decisions, the Federal Circuit 

has cautioned district courts to avoid “essentially convert[ing a party’s] motion in 

limine into a motion for summary judgment.” Meyer Intellectual Props., Ltd. v. 

Bodum, Inc., 690 F.3d 1354, 1378 (Fed. Cir. 2012); see also id. (“[W]hile argument 

regarding the sufficiency of the evidence ‘might be a proper argument for summary 

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judgment or for judgment as a matter of law, it is not a proper basis for a motion to 

exclude evidence prior to trial.’”) (quoting Mid–America Tablewares, Inc. v. Mogi 

Trading Co., 100 F.3d 1353, 1362 (7th Cir. 1996)). The Court heeds that caution 

here.3

Next, declining to consider Ford’s “lack of evidence” argument at the motion 

in limine stage is not unfair because Ford had the opportunity to secure a ruling on 

this argument earlier in these proceedings, but it failed to do so. Here is how Ford 

could have secured that ruling earlier. On July 24, 2019, the Court granted Ford’s 

motion to exclude certain evidence from Versata’s expert damages witnesses. (See 

Op. and Order, ECF No. 678.) The Court’s ruling left Versata without any expert 

witnesses who could testify at trial regarding the damages Versata allegedly suffered 

from Ford’s alleged breach of contract. (See id.) The parties each filed motions in 

response to the Court’s ruling. Versata asked the Court to reconsider the exclusion 

of its damages experts (see Versata Mot., ECF No. 709); Ford sought summary 

judgment on the ground that, among other things, the Court’s ruling left “Versata [] 

without proof of damages for its ... contract [] claim[].” (Ford Mot. for Summ. J., 

3

 As explained above, the Federal Circuit agrees with the Sixth Circuit that a party 

may not present summary judgment arguments in a motion in limine. The Court 

nonetheless notes that, as Ford acknowledged at the hearing on its motion in limine, 

Ford’s motion is governed by the law of the Sixth Circuit, not the Federal Circuit, 

because the motion pertains to matters of procedure. (See 4/8/2022 Hr’g Tr., ECF 

No. 815, PageID.56989.) 

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ECF No. 707, PageID.53001.) On January 22, 2020, the Court issued an order that 

(1) granted in part and denied in part Versata’s motion for reconsideration and (2) 

terminated Ford’s motion for summary judgment as moot. (See Order, ECF No. 

724.) With respect to Versata’s motion, the Court concluded that it would allow 

Versata’s experts to present some testimony at trial of Versata’s claimed damages. 

The Court then concluded that because Versata’s experts would be allowed to 

present evidence of contract damages at trial, Ford’s motion for summary judgment 

on Versata’s breach of contract claim – which was based upon an alleged lack of 

evidence of contract damages – was moot: 

Ford moved for summary judgment on Versata’s trade 

secret and breach of contract counterclaims on the basis 

that Versata could not support those claims with any 

evidence of damages. However, because the Court has 

reconsidered its decision that Versata cannot present 

evidence of damages to the jury, Ford’s motion is now 

moot. The Court therefore TERMINATES Ford’s 

motion. 

(Id., PageID.53970.) Simply put, by terminating Ford’s motion as moot, the Court 

expressed its view that Versata did have evidence to support its claimed contract 

damages. 

Ford could have sought reconsideration of the Court’s ruling on the same 

grounds that it presents in its current motion in limine – i.e., that even when the 

testimony from Versata’s expert witnesses is considered, Versata still has no 

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evidence to support its theory of contract damages.4

 But instead of filing such a 

motion for reconsideration, Ford waited two years to present that argument in its 

current motion in limine. (See Mot., ECF No. 803.) That Ford could have secured a 

ruling on its “lack of evidence” argument much earlier persuades the Court that it is 

appropriate to decline to consider that argument in Ford’s current motion in limine.

5

 Finally, the Court rejects Ford’s argument that it will suffer substantial unfair 

prejudice if the Court allows Versata to present its allegedly-unsupported contract 

damages theory at trial. Ford contends that unless the Court grants its current motion 

in limine, Versata will “spend days telling the jury there is some $17 million 

willingness [to pay] on Ford’s account” that isn’t supported by the evidence. 

(4/8/2022 Hr’g Tr., ECF No. 815, PageID.56976.) But Versata will “spend days” 

4

 Ford may be correct that Versata lacks sufficient evidence to support its claimed 

contract damages; the Court’s earlier assumption that Versata’s expert testimony is 

sufficient to support Versata’s contract damages theory may have been wrong. Ford 

may move for a directed verdict with respect to Versata’s contract claim and/or 

Versata’s demand for $17 million per year in contract damages at the close of 

Versata’s proofs at trial. 

5

 The parties in this case have not been shy about seeking reconsideration of the 

Court’s rulings when the parties believe that the Court has erred. (See, e.g., Ford 

Mot. for Reconsideration, ECF No. 503; Ford Mot. for Reconsideration, ECF No. 

538; Ford Sec. Mot. for Reconsideration, ECF No. 594; Versata Mot. for 

Reconsideration, ECF No. 709.) And the Court has fully considered those motions 

(even where a motion for reconsideration would otherwise be untimely), allowed 

full briefing on them, held hearings on them, allowed Ford in one instance to file a 

second motion for reconsideration on the same subject matter, and granted the 

motions where appropriate. (See, e.g., Op. and Order, ECF No. 678, granting in part 

motion for reconsideration).

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focusing on the $17 million per year amount no matter how the Court rules on Ford’s 

motion in limine because that same amount is the focal point of Versata’s trade secret 

misappropriation claim. A few extra references to that amount in the context of 

Versata’s breach of contract claim will not substantially mislead the jury. 

 Ford also says that it would be “confusing for the jury” if the jury is told that 

“there is a contract for [$]17 million on which Versata can seek damages” because 

there is no basis for Versata’s contract damages claim. (4/8/2022 Hr’g Tr., ECF No. 

815, PageID.56987.) Ford insists that “it’s not proper to present a jury with 

confusing [and] unsupported factual allegations about a damages theory and then 

hope the defense counsel can unscrew it all.” (Id., PageID.56976.) But the Court 

can alleviate Ford’s claimed prejudice during trial. If, as Ford predicts, Versata 

presents no evidence to support the damages it seeks on its breach of contract claim, 

then the Court can and will direct a verdict in Ford’s favor as appropriate. And if 

the Court does so direct a verdict in favor of Ford, the Court will give Ford a full 

and fair opportunity to propose a jury instruction that makes clear to the jurors that 

they should disregard all evidence related to the claim and/or theory of damages on 

which the Court directed a verdict. The Court is confident that the jury will abide 

by that instruction. See, e.g., Hubbell v. Fedex Smartpost, Inc., 933 F.3d 558, 574 

(6th Cir. 2019) (explaining that the “general rule [is] that a jury is presumed to follow 

its instructions”) (internal punctuation omitted); Barnes v. Owens-Corning 

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Fiberglass Corp., 201 F.3d 815, 822 (6th Cir. 2000) (“Federal courts generally 

presume the jury will follow the instructions correctly as given”). 

III 

 For all of the reasons explained above, IT IS HEREBY ORDERED that 

Ford’s motion in limine (ECF No. 803) is DENIED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: May 11, 2022 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on May 11, 2022, by electronic means and/or 

ordinary mail. 

 s/Holly A. Ryan 

 Case Manager 

 (313) 234-5126 

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