assumed that the Court would enjoin GATC and calculated damages as totaling $ 15,250,813; (3) Scenario #3 assumed that the Court would not enjoin GATC from continuing to lease the 80 cryogenic railcars now in service but would prohibit GATC from placing 30 additional cars into service and calculated damages as totaling $ 17,208,772.
GATC relied on the testimony of its expert witness, Raymond Sims, at trial. Mr. Sims analyzed Cryo-Trans' potential damages by making three assumptions -- all of which have proven to be true. Mr. Sims assumed that the disputed patent was valid, that GATC would be found to have infringed the patent and that an injunction would be entered at the conclusion of the trial. (Tr. 1127). Mr. Sims admitted that Cryo-Trans should be made whole and placed in the position that it would have been but for the infringement. (Tr. 1128). These damages would have included lost profits and some element of price erosion and were conservatively estimated by Mr. Sims to total $ 1.9 million. (Tr. 1128-1129).
The Court in its July 14, 1995 Memorandum Opinion rejected portions of all of the parties' alternative damage scenarios.
Instead, the Court awarded lost profits of $ 8,920,732 and rejected Cryo-Trans' additional price erosion damages as speculative. This Court specifically stated that based, in part, on the Court's injunction against GATC's further use of all of its infringing cryogenic railcars, it found that Cryo-Trans' additional price erosion damages of $ 7,926,259 for further price erosion on its potential future leases was speculative and unsupported by the preponderance of the evidence. (7/14/95 Mem. Op. P 40).
GATC's post-trial motion correctly notes that this Court relied on Mr. Levko's Scenario #1 calculations in deciding the appropriate damages in this case. The Court's current total damage award of $ 9,705,172 is the sum of lines I(A), I(B), II(A)(1) and III (A) of Scenario 1. The Court's use of these figures was its best estimate of the damages that would adequately compensate Cryo-Trans for GATC's infringement. Rite-Hite Corp. et al. v. Kelley Company, Inc., 56 F.3d 1538, 1544 (Fed. Cir. 1995); Smith Kline Diagnostics v. Helena Laboratories, 926 F.2d 1161, 1164 (Fed. Cir. 1991). However, because the Court recognizes that Mr. Levko's Scenario #1 calculations were based on the express premise that an injunction would not issue and because this Court still believes that the issuance of an injunction is a proper remedy in this case, this Court has decided to revise its award of damages to eliminate the internal inconsistency in using Mr. Levko's Scenario #1 calculations. Therefore, this Court has decided to modify paragraphs 39 through 42 of its July 14, 1995 Memorandum Opinion. These paragraphs of the opinion will be replaced by the following paragraphs:
39. This Court expressly credits the testimony of Cryo-Trans' damage expert Aron Levko as setting forth reasonable assumptions about the extent of infringement damages suffered by Cryo-Trans. In particular, this Court finds that the lost profits on GATC leases of F Plate cars which infringe the '876 Patent are $ 2,144,363. This Court further finds that Cryo-Trans has suffered price erosion damages as a result of GATC's infringement. Specifically, this Court finds that price erosion damages are appropriately awarded to Cryo-Trans because it will not be able to instantly lease replacement cars to the relevant companies on September 1, 1995 and there is a reasonable likelihood that the price it previously secured for its cars will be negatively impaired by GATC's prior infringement. (Tr. 293, 683, 685, 1144). Therefore, the Court finds Cryo-Trans has suffered price erosion damages of $ 3,024,052 on the current GATC leases of infringing F Plate cars; price erosion damages of $ 1,476,855 on the leased but not yet placed infringing GATC F Plate cars; price erosion damages of $ 567,954 on its current leases of F Plate cars; price erosion damages of $ 502,738 on its further lease renewal of F Plate cars; and price erosion damages of $ 1,030,273 on its future renewal of leases of its C Plate cars. (8/7/95 Supp. Declaration of A. Levko, Scenario #2; Schedules B-1, B-2, C-1, C-3 and C-4). The total damages suffered by Cryo-Trans are hereby determined by this Court to be $ 8,746,235. The Court specifically rejects some of the damage calculations made by GATC's expert, Mr. Sims, as being unduly conservative and unreasonable (Pl.'s Ex. HT).