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Honorable Thomas S. Zilly 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

LUCKY BREAK WISHBONE 

CORPORATION, 

Plaintiff, 

v. 

SEARS, ROEBUCK AND CO., a New 

York corporation; and YOUNG & 

RUBICAM, INC., a Delaware 

corporation, 

Defendants. 

No. 2:06-cv-0312-TSZ 

DEFENDANTS’ MOTION IN LIMINE

REGARDING PLAINTIFF’S CLAIMS 

FOR ACTUAL DAMAGES AND THE 

EXPERT REPORTS AND OPINIONS 

OF PETER H. NICKERSON 

Note on Motion Calendar: 

May 23, 2008 

ORAL ARGUMENT REQUESTED 

Defendant Sears Roebuck and Company (“Sears”) and Young & Rubicam Inc., 

(“Y&R”) (collectively, “Defendants”) respectfully submit this motion in limine to preclude 

Plaintiff Lucky Break Wishbone Corporation (“Plaintiff”) from asserting at trial a claim for 

actual damages as part of its copyright claims for the alleged infringement of the prototype 

wishbone and product warning. Defendants also seek to preclude the expert reports and 

testimony of Peter H. Nickerson and certain testimony of Ken Ahroni, Plaintiff’s President. 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 1 of 11
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PRELIMINARY STATEMENT

Plaintiff claims in its initial disclosures that it is entitled to actual damages for a 

“lost licensing revenue of $344,000.” (See Combined Declaration of Marc J. Rachman, 

dated May 15, 2008 (“MJR Dec.”), Ex. 2 at 8.) Further, with respect to the product 

warning developed by Plaintiff’s founder and President, Ken Ahroni, in connection with the 

Lucky Break wishbones (the “Product Warning”), Plaintiff claims that it suffered between 

$8,000 and $10,000 in actual damages as a result of the Defendants’ alleged infringement. 

(MJR Dec. Ex. 7 at 11.) However, Plaintiff’s claims for actual damages for the prototype 

wishbone and the Product Warning should be precluded as they are completely unreliable 

and speculative. Further, Nickerson did not have the experience to determine actual 

damages for copyrighted plastic works or product warnings, and he used flawed 

methodologies. Finally, Mr. Ahroni’s testimony regarding what his hourly rate would be to 

consult on a Product Warning should be precluded as subjective and completely 

speculative. 

ARGUMENT

17 A. LEGAL STANDARD 

1. Reliability of Expert Testimony

Expert testimony may be admitted only when “(1) the testimony is based on 

sufficient facts or data, (2) the testimony is the product of reliable principles and methods, 

and (3) the witness has applied the principles and methods reliably to the facts of the case.” 

Fed. R. Evid. 702 (2008). “[U]nder the Rules the trial judge must ensure that any and all 

[expert] testimony or evidence admitted is not only relevant, but reliable.” Daubert v. 

Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Cabrera v. Cordis Corp., 134 F.3d 

1418, 1420 (9th Cir. 1998). When expert testimony’s “factual basis, data, principles, 

methods, or their application are called sufficiently into question ... the trial judge must 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 2 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

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determine whether the testimony has ‘a reliable basis in the knowledge and experience of 

[the relevant] discipline.’” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) 

(citation omitted). Further, highly speculative evidence is properly excluded where its 

potential to prejudice or confuse the jury outweighs any probative value that evidence 

might have. See Fed. R. Evid. 403; U.S. v. Scholl, 166 F.3d 964, 970-72 

(9th Cir. 1999). 

2. Claim for Actual Damages

Under the Copyright Act, “[t]he copyright owner is entitled to recover the actual 

damages suffered by him or her as a result of the infringement.” Under Ninth Circuit law, 

when the infringer could have bargained with the copyright owner to purchase the right to 

use the work, actual damages are “what a willing buyer would have been reasonably 

required to pay to a willing seller for plaintiffs’ work.” Jarvis v. K2 Inc., 486 F.3d 526, 533 

(9th Cir. 2007) (internal citations and quotations omitted). Excessively speculative claims 

of damages are to be rejected, and “the market value approach is an objective, not a 

subjective, analysis.” Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002). 

B. PLAINTIFF’S CLAIM FOR ACTUAL DAMAGES FOR THE 

PROTOTYPE WISHBONE 

Plaintiff submitted the expert report of Peter H. Nickerson in support of its claim for 

actual damages for the prototype wishbone (“First Nickerson Report”). However, because 

Nickerson did not apply the standards set forth in Mackie and Polar Bear Prods., Inc. v. 

Timex Corp., 384 F.3d 700, 712 (9th Cir. 2004), his opinions are improper and should be 

excluded. Moreover, he was not qualified to opine on this issue. Thus, Nickerson’s report 

and testimony should be precluded. 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 3 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 3 of 11
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1. Nickerson’s Opinion on Damages did not Comply with the Standards Under 

Ninth Circuit Law

To determine actual damages, the Ninth Circuit has “endorsed a hypothetical 

approach: ‘what a willing buyer would have been reasonably required to pay to a willing 

seller for [the owner’s] work.’” Mackie, 296 F.3d at 916-17 (citations omitted) (finding 

that to determine damages one looks to what defendant “would have paid for a license to 

use” the copyrighted work.). Here, Nickerson stated that he “calculated the value of actual 

damages associated with the lost license fee and lost profits from that fee” and found that 

“[t]he direct loss to Lucky Break due to the infringement is the income Lucky Break would 

have received from Sears had Sears simply finished its [alleged] contract with Lucky 

Break and purchased the wishbones and their use rights directly from Lucky Break.”1

 

(MJR Dec. Ex. 8, “PN Rep.” at 1-2 (emphasis added).) In addition, Nickerson testified that 

his calculation of damages in the amount of $344,000 is based on his determination of 

“monopoly rents.” (MJR Dec. Ex. 10 “PN Dep. I” at 39.) According to Nickerson, 

monopoly rents are income earned because the copyright holder has “ownership in some 

sort of barrier to entry, either a legal ownership or a contrived ownership.”2 (Id.) 

What Plaintiff would have charged for its wishbone or its purported monopoly rents 

in the prototype wishbone has no bearing on the market value to license the copyright in the 

prototype wishbone (i.e. what a willing buyer would pay a willing seller to license the 

copyright). See Mackie, 296 F.3d at 917. “The question is not what the owner would have 

charged, but rather what is the fair market value.” See On Davis v. The Gap, Inc., 246 F.3d 

 

1

 In Polar Bear, the Ninth Circuit found that Plaintiff’s quoted price for use of its copyright could be used as 

the market value for the license. 384 F.3d at 709. However, the quoted price in Polar Bear was to renew an 

existing license for use of the infringing footage. Id. Here, Plaintiff’s quoted price (which was not a contract) 

was not to license the use of the prototype wishbone. Rather, the quoted price was for Plaintiff to produce one 

million wishbones, including costs for packaging, the header and pad printing. (See PN Dep. I at 62.) 

Moreover, Plaintiff has dropped its breach of contract claim from this action, presumably because it realized 

there was no basis for it.

2

 The assertion of rights akin to a monopoly, however, goes against the principles of copyright law. See

Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971) 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 4 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 4 of 11
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152, 166 (2d Cir. 2001). Nickerson admittedly did not follow the approach set forth in 

Mackie. Indeed, Nickerson testified that Mackie and Polar Bear did not have any effect on 

his report. (PN Dep. I at 92.) Moreover, it is apparent that Nickerson and Plaintiff have 

confused the market value to license the prototype wishbone with the costs to manufacture

and package 1 million wishbones, costs which Plaintiff did not incur and are unrelated to 

the market value of a license in the prototype wishbone design. See Rondor Music Int’l 

Inc., v. TVT Records, LLC No. CV 05-2909 (JTL), 2006 U.S. Dist. LEXIS 97118, at *13 

(C.D. Cal. Aug. 21, 2006) (rejecting expert’s calculation of damages because it was not 

based on a “reliable method”). 

Further, Nickerson’s claim regarding actual “lost profits” is also spurious. 

Plaintiff’s “financial losses were not [Sears’] making, and mere speculation does not suffice 

to link the losses to the infringement.” Polar Bear, 384 F.3d at 710. Thus, Nickerson’s 

report and opinion regarding Plaintiff’s damages for Sears’ alleged infringement of the 

prototype wishbone should be precluded. 

2. Nickerson’s Opinion was Speculative and Failed to Subtract Plaintiff’s 

Estimated Costs

In addition, Nickerson’s opinion is speculative because he conceded that his 

damages calculation was a “maximum license value number” that failed to deduct 

Plaintiff’s costs from Plaintiff’s quote for the contract amount. (PN I Dep. at 79.) It is 

well-established Ninth Circuit law that “[e]xcessively speculative claims of damages are to 

be rejected.” Jarvis, 486 F.3d at 533. Nickerson claims that his maximum calculation 

included costs that should be “backed out” of his determination, i.e., what Plaintiff would 

have paid for manufacturing, packaging, the header and the pad printing on the plastic 

wishbone. (PN I Dep. at 62.) Nickerson stated that he included these costs because 

“[t]hey’re tied in with the product, so there’s not a license value associated with the 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 5 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 5 of 11
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package, but that’s how the licensed product is being delivered.” (Id.) However, Nickerson 

offered no support for this claim. 

When asked why the costs for non-copyrightable items like the packaging, header 

and the pad printing should be included with the wishbone, Nickerson testified that “if 

somebody else can deliver these things or a competitive market could deliver them, those 

would not be part of the license infringement, and they would be subtracted off.” (Id. at 63 

(emphasis added).) However, as discussed above, it was Nickerson’s job to determine what 

the market would charge to license the prototype wishbone design, not what Plaintiff’s 

maximum charge could be to manufacture and package 1 million prototype wishbones. See 

Mackie, 296 F.3d at 917. Thus, the First Nickerson Report and Nickerson’s testimony 

should be precluded for this additional reason. 

3. Nickerson was not Qualified to Issue an Opinion on Actual Damages

Finally, Nickerson conceded that his firm had been involved in only one prior 

copyright case and he did not have specific experience valuing licenses for copyright 

designs in plastic items or molds. (PN Dep. I at 29 & 36.) Further, he did no research in 

preparing his report other than reading “excerpts” of Mackie and Polar Bear (which he did 

not rely on) and a few emails produced in the litigation. (Id. at 40 & 42.) An “expert’s 

testimony [on damages] must be grounded in an accepted body of learning or experience in 

the expert’s field, and the expert must explain how the conclusion is so grounded.” See 

Masterson Mktg., Inc., v. KSL Recreation Corp., 495 F. Supp. 2d 1044, 1050-51 (S.D. Cal. 

2007). Thus, the First Nickerson Report and Nickerson’s testimony should be precluded 

for this reason as well. 

4. Plaintiff Relies Solely on the First Nickerson Report For Actual Damages in 

the Prototype Wishbone

Plaintiff claims in its initial disclosures that, “Lucky Break’s actual damages 

pursuant to § 504 include lost licensing of $344,000,” which is the number Nickerson 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 6 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

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arrived at in his report. (MJR Dec. Ex. 2 at 8.) Thus, for all the reasons stated above, any 

claim for actual damages attributable to the prototype wishbone must be precluded as there 

is no reliable basis for asserting this number as a measure of the relevant value to license 

Plaintiff’s prototype wishbone design. 

C. PLAINTIFF’S CLAIM FOR ACTUAL DAMAGES FOR THE PRODUCT 

WARNING 

Plaintiff relies on another entirely speculative report of Nickerson (“Second 

Nickerson Report”) to arrive at its actual damages on its Product Warning claim. (See MJR 

Dec. Ex. 9, “PN Rep. II.”) 

1. Nickerson’s Report did not Measure Actual Damages for a Product Warning 

Created by a Non-Attorney

Plaintiff’s Product Warning was allegedly created by Plaintiff’s owner, Ken Ahroni, 

who is not an attorney and who did not seek the advice of an attorney in drafting the 

Product Warning. (See MJR Dec. Ex. 12, “KA Dep.” at 26.) However, Nickerson testified 

that his opinion did not apply to nor did it provide an estimate for what it would cost a nonattorney to draft the Product Warning or a similar product warning. (See MJR Dec. Ex. 11, 

“PN Dep. II.” at 31 & 44.) Instead, he opined on what an attorney would charge to 

research, prepare a memo and draft a Product Warning. (PN Rep. II at 1.) This is unrelated 

to what it would cost to license a product warning like Plaintiff’s. Thus, because 

Nickerson’s expert report did not determine the market value to license Plaintiff’s Product 

Warning, it is not relevant and should be precluded. 

2. Nickerson was Not Qualified to Issue an Opinion on Actual Damages for a 

Product Warning

Nickerson was also not qualified to issue an opinion on the value of a product 

warning. Nickerson admitted that his expertise was not required to call an attorney and ask 

for an estimate to draft a product warning (PN Dep. II at 25) or to determine how many 

hours it would take for an attorney to draft it, which is all he did to prepare his opinion. (Id. 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 7 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

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at 40-41.) Regarding his understanding of legal liability for product warnings, Nickerson 

testified that “I don’t think I have an academic set of information on that that would allow 

me to give an opinion one way or another for any product.” (Id. at 18. (emphasis added).) 

Merely being an economist does not qualify Nickerson to opine on the market value to 

license the Product Warning. See Mid-State Fertilizer Co. v. Exch. Nat’l Bank of Chicago, 

877 F.2d 1333, 1340 (7th Cir. 1989) (rejecting an economist’s expert who did not do any 

economic analysis, but rather “examined materials produced in discovery and drew 

inferences from the record, speaking in legal rather than economic terms”). 

3. Nickerson did not Use a Proper Methodology and his Opinion is Speculative 

and Unreliable

Nickerson’s entire methodology in determining the market value of a product 

warning was to obtain an estimate on how much it would cost to draft a product warning 

from one attorney and read e-mails from two other attorneys sent to Nickerson by 

Plaintiff’s counsel, providing estimates for the cost to research, prepare a memo and draft a 

product warning. (PN Dep. II at 17, 33-35). Nickerson did not ask all the attorneys how 

much it would cost to draft Plaintiff’s Product Warning or a similar warning, but rather 

how much it would cost to research, prepare a memo and draft a product warning in 

general.3 (Id. at 22.) Further, Nickerson did not personally communicate with the 

attorneys that provided Plaintiff’s counsel with estimates for how much it would cost to 

research, prepare a memo and draft a product warning, but instead relied on the information 

they provided to Plaintiff’s counsel. (Id. at 33.) Moreover, one of the three attorneys wrote 

that typically product warnings were between $8,000 - $10,000 but “this product seems 

 

3

 Simeon J. Osborn, one of the attorneys who provided an estimate to Plaintiff’s counsel, wrote in a letter that 

“In order to execute the research involved for a product going on the market ... to do additional research, to 

draft a report, and to perform any additional work which may be required in the process, including writing the 

actual warnings, it will total a cost of approximately $10,000.” (See MJR Dec. Ex. 14.) Michael Burkhardt 

wrote that product liability lawyers in his firm “would expect on average that to research and prepare a 

products [sic] warning, you should expect between $8,000 - 10,000.” (See MJR Dec. Ex. 13.) 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 8 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

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very simple and so it is possible that it would cost less, but this estimate is based on my 

partners’ recent experience.”4 (See MJR Decl., Ex. 13 (emphasis added).) Remarkably, 

Nickerson completely ignores this exception in drafting his report. Moreover, without 

reviewing the Product Warning in this litigation, the estimates provided by the attorneys are 

completely unreliable and speculative. In addition, Nickerson conceded that “I can imagine 

these [product warnings] being 50 to hundred times as much in medical areas or airplane 

areas,” but he did not ask or determine whether the attorneys’ estimates were for complex 

medical product warnings or simple toys. (PN Dep. II at 36.) 

Additionally, Nickerson’s methodology was completely unreliable. First he only 

relied on three estimates. This is an insufficient number to determine the market rate to 

license such work, especially when he ignored one of the three estimates that specifically 

commented that the range should be lower. Second, Nickerson testified that he viewed only 

four websites and consulted with one attorney in one day, but did not refer to any actual 

research on product warnings. (Id. at 10-11 & 31.) Finally, he did little or no research on 

the economic impact of product warnings on toys (he did a majority of his research on the 

medical industry) and did no research on whether or not anyone ever even read the Product 

Warning. (Id. at 13-14.) 

4. Plaintiff’s Calculation of Damages Based on Ahroni’s Hourly Rate is 

Completely Speculative

Finally, Mr. Ahroni’s testimony as to what he would charge to draft the Product 

Warning provides no acceptable alternative basis for calculating damages and is completely 

speculative. Plaintiff’s claim for an alternative method of calculating damages has no basis 

in law, as Plaintiff’s actual damages are measured by the market value not what Plaintiff or 

 

4

 Nickerson received this email that was sent to Plaintiff’s attorney from an attorney (Michael Burnhardt) at a 

different firm, who in turn asked a colleague of his (another partner at the firm) how much he would charge to 

draft a product warning. Nickerson did not even know the name of the partner who provided the estimate. 

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 9 

FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

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ded. 

Ken Ahroni would have charged for creating the Product Warning. Jarvis, 486 F.3d at 533 

(internal quotations and citation omitted). Moreover, Ahroni’s consulting rate of $200 to 

$300 an hour is irrelevant because he has no background or expertise in drafting product 

warnings. Ahroni’s subjective claim of what he would have charged for his services is 

prohibited under Ninth Circuit law. “Such an undertaking, unaided by expert testimony ... 

would be tantamount to inviting the jurors to engage in speculation and conjecture.” Lemon 

v. Harlem Globetrotters Int'l, Inc., 437 F. Supp. 2d 1089, 1106 (D. Ariz. 2006). 

Additionally, Plaintiff has never charged anyone to use its Product Warning and it is 

included in the price of the wishbone.5 (KA Dep. at 98.) Thus, Ahroni’s testimony on 

what his hourly rate would have been should be preclu

5. Plaintiff Relies Solely on the Nickerson Report II and Ahroni’s Statements 

Regarding his Hourly Rate for Damages in the Product Warning

Plaintiff relies solely on the Second Nickerson Report and Ahroni’s statements 

regarding his hourly rate as a consultant to arrive at its claim for actual damages. (MJR 

Dec. 2 at 8.) Thus, for all the reasons stated in section C above, any claim for actual 

damages attributable to the Product Warning must be precluded. 

CONCLUSION

For all of the foregoing reasons, the Court should issue an order: (i) precluding 

Nickerson from testifying at trial regarding Plaintiff’s claims for actual damages; 

(ii) precluding the use of the Nickerson Reports (First and Second) at trial; (iii); precluding 

 

5

 McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003), which was cited by 

Plaintiff in its opposition to Defendants’ motion for summary judgment on the Product Warning, does not 

support Plaintiff’s claim regarding Ahroni’s hourly rate being an acceptable method to calculate damages. In 

McRoberts, the court found that the jury’s valuation of a computer software program was based on “sufficient 

evidence” and was not unduly speculative. That evidence included the defendant’s licensing agreements with 

third parties and comparisons with other software providers. Id. at 567. Here, Lucky Break has offered 

nothing more than its own subjective claims of Mr. Ahroni’s hourly rate – although Mr. Ahroni could recall 

only one instance in which he was involved in the creation of a product warning (for lighting). Further, 

Ahroni has never charged a fee for the creation of a product warning, and Lucky Break has no evidence of a 

how much non-lawyers charge for drafting product warnings. (See KA Dep. II at 99-101; PN Dep. II at 23.)

DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 10 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 10 of 11
DEFENDANTS’ MOTION IN LIMINE RE PLAINTIFF’S 

CLAIMS FOR ACTUAL DAMAGES AND THE EXPERT 

REPORTS AND OPINIONS OF PETER H. NICKERSON 

NO. 2:06-cv-0312 – Page 11 

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FOURTH & MADISON 

925 FOURTH AVENUE, SUITE 2500 

SEATTLE WASHINGTON 98104 

T 206.516.3800 F 206.516.3888 

Plaintiff from claiming actual damages on its copyright claims6; and (iv) precluding 

Plaintiff’s principal, Ken Ahroni, from testifying at trial regarding what he would have 

charged to create the Product Warning. 

Dated this 15th day of May 2008. 

YARMUTH WILSDON CALFO, PLLC 

By: /s/ Jeremy E. Roller 

 Richard C. Yarmuth, WSBA No. 4990 

 Jeremy E. Roller, WSBA No. 32021 

 925 Fourth Avenue, Suite 2500 

 Seattle, WA 98104 

 Telephone: 206.516.3872 

 Fax: 206.516.3888 

 yarmuth@yarmuth.com 

 jroller@yarmuth.com 

DAVIS & GILBERT LLP 

By: /s/ Marc J. Rachman 

 Marc J. Rachman (pro hac vice) 

 1740 Broadway 

 New York, NY 10019 

 Telephone: 212.468.4888 

 Fax: 212.974.6938 

 mrachman@dglaw.com 

Attorneys for Defendant

 

6

 Because Plaintiff relied solely on the First and Second Nickerson Reports I & II in its Supplemental Initial 

Disclosures and Response to Interrogatories, it should be precluded from providing any testimony regarding 

its actual damages. (See MJR Dec. Ex. 2 at 8 & Ex. 7 at 11.) 

Case 2:06-cv-00312-TSZ Document 221 Filed 05/15/2008 Page 11 of 11