ORDER

JOSEPH F. BATAILLON, District Judge.

A final pretrial conference was held on the 16th day of October 2018. Appearing for the parties as counsel were:

(A) Reservation of Rights.

In light of the issues pending before or recently resolved by the Court, including Exmark's Motion to Reaffirm the Jury Verdict That Briggs's Infringement Was Willful (see Filing Nos. 723, 720, 737, 748), Exmark's Motion to Reaffirm Summary Judgment That the Asserted Claims of the '863 Patent Are Not Invalid in View of the Prior Art (see Filing Nos. 722, 719, 741, 750), and Briggs's Motion to Exclude Certain Opinions and Testimony from Exmark's Damages Expert Melissa Bennis (see Filing Nos. 757, 759, 764, 774), each party reserves the right to supplement its objections to exhibits, identification of witnesses as either will call/may call, and whether a witness will be made available for live testimony at trial, until November 21, 2018.

(B) Exhibits. See attached Exhibit Lists. (Attachments 1 and 2)

The attached Exhibit Lists contain the parties' good-faith efforts to identify the entire universe of exhibits to be used at trial, as well as objections to the admission of such exhibits. Prior to November 14, 2018, each party may add up to five (5) exhibits to its exhibit list without a showing of good cause. Thereafter, the exhibit lists shall not be supplemented without approval of all parties or leave of the court, on good cause shown. The mere listing of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met.

(C) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:

The parties agree that the following facts are uncontroverted and may be read to the jury at such time(s) throughout the trial as needed to put the uncontroverted fact in context.

1. Plaintiff Exmark Manufacturing Co., Inc. is a Nebraska corporation with a principal place of business in Beatrice, Nebraska.

2. Exmark is the owner of U.S. Patent No. 5,987,863 ("the '863 patent"), which issued on November 23, 1999. The '863 patent expired on November 23, 2015.

3. Defendant Briggs & Stratton Corp. is a Wisconsin corporation with a principal place of business in Wauwatosa, Wisconsin.

4. Briggs makes and sells mowers under the Ferris and Snapper Pro brand names.

5. If a document is introduced at trial having a bates number beginning with "EXM" the document was in the possession, custody, or control of Plaintiff Exmark.

6. If a document is introduced at trial having a bates number beginning with "BRIGGS" the document was in the possession, custody, or control of Defendant Briggs.

7. Briggs has manufactured and sold lawn mowers of particular designs, including under the Ferris and Snapper Pro brands, that infringe claim 1 of Exmark's `863 patent.

8. In 1999, Simplicity Manufacturing, Inc. acquired Ferris as a wholly-owned subsidiary.

9. On July 4, 2004, Briggs acquired Simplicity. After the acquisition, Ferris was structured as a wholly-owned subsidiary of Briggs.

(D) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

Willful Infringement

Currently pending before the Court is Exmark's Motion to Reaffirm the Jury Verdict That Briggs's Infringement Was Willful. See Filing Nos. 723, 720, 737, 748. The Court's ruling on that motion will determine whether willful infringement needs to be retried to the jury.

Damages

The jury should be asked to determine what damages Exmark proves it has suffered as a result of Briggs's infringement.

Interest, costs, enhanced damages and attorney fees

Exmark's statement:

After trial, the Court should determine the amount of prejudgment and post-judgment interest and costs to be awarded on any damage award. Exmark anticipates that it will also ask the Court to award enhanced damages and attorney fees under 35 U.S.C. §§ 284 and 285.

Briggs's statement:

Whether Exmark is entitled to a judgment and order requiring Briggs to pay Exmark any portion of its costs, expenses, pre- and post-judgment interest, and/or reasonable attorneys' fees for its infringement of the `863 patent as provided under 35 U.S.C. §§ 284 and 285.

(E) Witnesses. All witnesses, including rebuttal witnesses, expected to be called to testify by plaintiff, except those who may be called for impeachment purposes only, are:

All witnesses expected to be called to testify by defendant, except those who may be called for impeachment purposes only, are:

It is understood that, except upon a showing of good cause, no witness whose name and address does not appear herein shall be permitted to testify over objection for any purpose except impeachment. A witness whose only testimony is intended to establish foundation for an exhibit for which foundation has not been waived shall not be permitted to testify for any other purpose, over objection, unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure 26(a)(3). A witness appearing on any party's witness list may be called by any other party.

(F) Expert Witnesses' Qualifications. Experts to be called by plaintiff and their qualifications are:

Dr. Paul J. Strykowski — CV attached (Attachment 3)

Garry Busboom — Mr. Busboom is a degreed engineer who has been employed in various engineering capacities by Exmark since 1985 and recently retired. In that time, he has worked on the design and development of nearly every aspect of commercial mowers. Mr. Busboom is a named inventor on 14 United States patents relating to lawn mowers, including the `863 patent in suit.

Melissa A. Bennis — CV attached (Attachment 4)

Experts to be called by defendant and their qualifications are:

John R. Bone — CV attached (Attachment 5)

(G) Voir Dire. Counsel has reviewed Federal Rule of Civil Procedure 47(a) and suggests the following with regard to the conduct of juror examination:

See attached proposed jury voir dire. (Attachment 6)

(H) Number of Jurors. Counsel has reviewed Federal Rule of Civil Procedure 48 and suggests that this matter be tried to a jury composed of 10-12 members.

(I) Verdict. The parties will not stipulate to a less-than-unanimous verdict. (If applicable), the parties' stipulation is: (N/A)

(J) Briefs, Instructions, and Proposed Findings. Counsel has reviewed the Nebraska local rules and suggest the following schedule for filing trial briefs, proposed jury instructions, and proposed findings of fact, as applicable:

(K) Length of Trial. Counsel estimate the length of trial will consume not less than 3 day(s), not more than 8 day(s), and probably about 5-6 day(s).

(L) Trial Date. Trial is set for December 11, 2018.

(M) Other.

Demonstratives

The parties agree that any pre-prepared demonstratives to be used at trial shall be disclosed to the opposing party by 7:00 p.m. the evening before the demonstrative is used, and a meet and confer at 9:00 p.m. that same day regarding any objections to those demonstratives. The parties anticipate working together prior to trial to reach agreement regarding what constitutes a "pre-prepared demonstrative" for the purpose of this disclosure provision.

Witness Availability

Exmark's statement:

Exmark anticipates that it will call two Briggs employees in its case in chief: Mr.

Philip Wenzel and Mr. James Marshall. Both witnesses previously testified at the 2015 trial and Mr. Wenzel was Briggs's corporate designee during the 2015 trial. Exmark requests that Briggs make both Mr. Wenzel and Mr. Marshall available for live testimony in Exmark's case in chief. Exmark maintains that if one party calls the other party's witness in its case in chief, the scope of cross-examination of that witness should be limited to the scope of direct examination and that, in this instance, the party whose witness was called is free to recall that witness to the stand to testify in that party's case-in-chief.

Exmark notes the parties anticipate calling some witnesses via deposition. Exmark agrees that the parties should promptly set a schedule for deposition designations and counter-designations and that all admissible deposition counter-designation excerpts will be introduced simultaneously in the sequence in which the testimony was originally given. Exmark reserves its right to object to the use of deposition testimony in lieu of live testimony under F.R.E. 801/802, Fed. R. Civ. P. 32.

Briggs's statement:

Briggs does not anticipate that it will call any of Exmark's witnesses by live testimony in its case-in-chief. Regarding Exmark's anticipated live examination of Messrs. Wenzel and Marshall, for purposes of economy and the avoidance of prejudice and disruption, Briggs requests that these witnesses take the stand only once, and that it occur during Briggs's case-in-chief. Briggs would call these witnesses, and then Exmark can elicit all the testimony it needs from these witnesses, including on topics outside the scope of Briggs's examination, at that time.

Briggs anticipates that it will call certain witnesses by deposition testimony or 2015 trial testimony during its case-in-chief subject to Fed. R. Civ. P. 32. Briggs will exchange such designations at a mutually agreeable time and will work to set a schedule for any objections or counter-designations. All admissible counter-designation excerpts will be introduced simultaneously in the sequence in which the testimony was originally given.

Use of Interrogatory Responses

The parties agree that all or any part of any interrogatory response(s) of the opposing party can be read to the jury at any time during trial.

Attachment 1

Attachment 2

Attachment 3

Attachment 4

Attachment 5

Attachment 6