Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO AMEND JUDGMENT ______________________________________________________________________________ COMES NOW the Plaintiff, M.D. Mark, by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and hereby submits this Reply to Defendant's Response to Plaintiff's Motion to Amend Judgment, which as grounds therefore, Plaintiff shows unto this Court the following: INTRODUCTION The Plaintiff agrees that it is only entitled to a single recovery when it has plead under multiple legal theories and awarded damages under the multiple legal theories for the same injury. Here the Plaintiff claimed breach of contract against Oryx Energy Company, breach of contract against Kerr-McGee Corporation and misappropriation of trade secrets against KerrMcGee Corporation. The claims are separate, the injuries are separate and distinct injuries, and as such, the awards should be added together.

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 2 of 6

This Reply incorporates the arguments set forth in Plaintiff's Response to Defendants' Renewed Motion for Judgment as a Matter of Law pursuant to Rule 50(b) and/or Remittitur, and/or to Alter and Amend the Judgment Pursuant to Rule 59(e) (hereinafter "RESPONSE"). None of the claims fail as a matter of law, ample credible evidence was presented to the jury to support the damage awards and interest must be added according to Colorado law. Difficulty in ascertaining the date from which interest should run on the damage award does not preclude the Plaintiff's right to interest on the damage award. I. STACKED DAMAGES A. The jury determined in Section A of the Verdict Form that Oryx Energy Company

breached the license agreements by transferring them to Kerr-McGee Corporation. The jury heard testimony from witness for Plaintiff and witness for Defendant. The Defendant relied heavily on the testimony of Mr. Thomas Russell the former head of Professional Geophysics, Inc. as to what the language of the license agreements meant. The Plaintiff's witnesses argued that the license agreements prohibited the PGI Data from going to the survivor in a merger without certain conditions being met. As argued in the RESPONSE, none of those conditions were met. The jury obviously chose to disregard the incredible testimony of Mr. Thomas Russell and accept the testimony of the Plaintiff's witnesses. The only way the injury would be the same is if the jury had determined that Oryx Energy Company breached the license agreements by transferring the licenses to Kerr-McGee Oil & Gas Corporation instead of Kerr-McGee Corporation, then any award of damages on the breach of contract claim set forth in Section A would be the same as the claim set forth in Section C of the verdict form and would not be a separate and distinct injury. Each transfer was a separate wrongful transfer of the PGI Data. 2

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 3 of 6

Unless the jury meant something other than what is set forth in Section A1(c) of the verdict form, Oryx Energy Company's (Kerr-McGee's) conduct with the PGI Data was an additional bad act that the jury decided to award damages for. The Defendant relies on Crowe v. Tull, 126 P.3d 196, (Colo. 2006) in support of its argument. Crowe v. Tull does not apply. Here, we are dealing with different transactions involving PGI Data. The first transaction was a breach and the second transaction was a breach. The damage award of $25,266,381 does not subsume anything. SECTION C DAMAGES The Defendant contends that the only way the Plaintiff can hope on this record, to sustain the jury's damage award in Section C is to assume that the jury awarded damages for all three categories of seismic data. Though the Defendant appeared at trial, it obviously did not pay attention to the evidence presented by the witnesses as the jurors did. The Defendant's blinders blocked a view of the obvious. The obvious is that the license agreements were breached through at least two transfers, Kerr-McGee Corporation misappropriated M.D. Mark, Inc.'s trade secrets and Kerr-McGee Corporation is not entitled to discounts for trade secrets it misappropriated. The Defendant's witnesses on damages were incredible at best. Most of the Plaintiff's witnesses provided testimony that the cost to acquire seismic data (not license it) was anywhere from $4,500.00 to $35,000.00 per mile with a likely range of from $5,000 to $10,000 per mile. The Plaintiff's witnesses also provided testimony to support license fees well in excess of $1,000.00 per mile. If the jury chose to award damages to M.D. Mark for misappropriation of the bootlegged PGI Data alone based upon what it would have cost Kerr-McGee Corporation to acquire the seismic data on its own, the jury's award was low. Kerr-McGee Corporation had the 3

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 4 of 6

bootlegged PGI Data prior to 1996. It is not unreasonable for the jury to consider the cost of acquisition of that data instead of a license fee per mile and that would be consistent with instruction 3.6. The jury did not have to consider discount license fees, bulk purchase fees or any kind of discount. As stated during the trial, "you don't get discounts when you misappropriate seismic data." The jury was provided guidance from testimony of witnesses and arguments of counsel. The jury award was lower than it could have been. If anything, the jury award was lower than it should have been. The Defendant's argument that there can be no doubt that the jury awarded damages in Section C for the 16,000 miles of Oryx seismic data is mere conjecture. As set forth above, the cost for Kerr-McGee Corporation to acquire seismic data at its own expense in the area where the PGI Data is located was in excess of $5,000 per mile. The jury could have easily and fairly damages based upon the cost of acquisition. None of us know the methodology used by the jury to determine damages. Not knowing the methodology does not undermine the integrity of the verdict as the Defendant hopes. SECTION B DAMAGES As set forth in Section B of the Verdict Form, the jury determined that Kerr-McGee Corporation breached the license agreements. The injury for which damages were awarded in this section of the Verdict Form is different than the injury for which damages were awarded in Section A and Section C of the Verdict Form. The damage award is clearly not excessive. Nor should the damage award in Section C be reduced.

4

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 5 of 6

PREJUDGMENT INTEREST It is without question that the Plaintiff is not entitled to prejudgment interest on an award of damages to which it is not entitled. That said, it is without question that the Plaintiff is entitled to prejudgment interest on an award of damages to which it is entitled. It was clear from the testimony at trial that Kerr-McGee Corporation wrongfully gained access to the bootlegged PGI Data prior to 1996 before the PGI Data was shipped to MidCon Data Services, Inc. in Oklahoma. Kerr-McGee claims it doesn't know when or how it gained possession of the bootlegged PGI Data. They claimed to just know the data came from their office in Houston, Texas. The date of their wrongful possession could have been as early as 1986 when Kerr-McGee Corporation was licensing parts of the North Louisiana/Southern Arkansas Survey for $1,250 per mile. Is was also clear from the testimony at trial that Kerr-McGee Corporation wrongfully withheld the PGI Data following the merger between it and Oryx Energy Company on February, 1999. Thus, the latest date in any scenario that the PGI Data was wrongfully withheld was that date and as a minimum, the Plaintiff should be entitled to prejudgment interest from that date. DATED: November 2, 2007. Respectfully submitted, PELZ, BONIFAZI & INDERWISH, P.C. s/ Harlan P. Pelz Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF 5

Case 1:01-cv-00413-JLK-BNB

Document 293

Filed 11/02/2007

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of November, 2007, a true and correct copy of the foregoing PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO AMEND JUDGMENT was electronically filed, addressed as follows: M. Antonio Gallegos, Esq. Scott S. Barker, Esq. Gregory E. Goldberg, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 303-295-8261 Fax

s/ Allison E. Goldstein Allison E. Goldstein

6