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Plaintiff Seeks to Substitute Damage Expert after Expert Retires

In this patent infringement action, the plaintiff sought to substitute its damage expert because its current damage expert had retired. The plaintiff also sought to withdraw the retired expert’s damage report.

The Magistrate Judge construed this as a request to extend the discovery deadline. The Magistrate also determined that there was good cause for the request and granted the extension of the discovery deadline.

However, the Magistrate Judge did not permit the withdrawal of the expert report and instead determined that “defendant’s counsel may cross-examine plaintiff’s newly retained expert based upon Dr. Beutel’s report.” The Magistrate Judge did decline to allow the defense to subpoena the former expert, Dr. Beutel, as a witness at the time of trial.

Finally, the Magistrate Judge permitted the defense counsel to file an application for an award of expenses incurred in response to plaintiff’s retired expert.

PPC Broadband, Inc. v. Corning Optical Communications RF, LLC, Case No. 5-13-cv-00538 (N.D.N.Y. Oct. 15, 2015)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or