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District Court Grants Motion to Strike Damage Expert Where Damage Expert Did Not Serve Report Prior to Court Deadline

In this patent infringement suit, Defendants and Counterclaimants James Stephens and Spectrum Laboratories, LLC (“Spectrum”) moved to strike the report of Plaintiff’s damages expert, Robert Taylor. Spectrum argued that the Plaintiff did not designate Mr. Taylor as an expert before the expert designation deadlines set by the district court expired. Spectrum also contended that the plaintiff violated a protective order by providing Taylor with information designated “Attorneys’ Eyes Only” under the protective order.

The Plaintiff conceded that it failed to identify Taylor prior to the district court’s deadline, but contended that the oversight was inadvertent. The Plaintiff also argued that Taylor’s report was timely filed before the expert report cutoff date and that Taylor was required to execute the Acknowledgment accompanying the protective order prior to receipt of any information marked confidential or attorney’s eyes only.

Spectrum rebutted the Plaintiff’s contention by noting that the Plaintiff also concedes that it chose not to designate a damages expert until after being served with Spectrum’s damages expert’s report.

The district court explained that the scheduling order required that each expert witness designated by a party shall prepare a written report to be provided to all other parties and that any party may supplement any of its expert reports, regarding evidence intended solely to contradict or rebut evidence on the same subject matter identified in an expert report submitted by a later date in the case. The district court also explained that the scheduling order “warned each party that failure to make disclosures, absent substantial justification, would preclude the parties from using undisclosed evidence or testimony at any hearing or at the time of trial.”

The district court concluded that the expert should be excluded for failing to follow the rules:
The Court finds that Plaintiff’s inconsistent explanations regarding its decision as to whether to designate a damages expert demonstrate that Plaintiff chose not to designate a damages expert after evaluating the merits of the case. Plaintiff essentially is asking this Court to authorize its disregard of the scheduling order and to cover Plaintiff’s bet. Plaintiff’s counsel chose a risky, strategic course of action in anticipation of how Spectrum would litigate the case. The Court is not tasked with safeguarding a litigant’s strategic choices even when that litigant elects a course of action that may later be to its detriment. Plaintiff did not move to leave for an extension of time to file its damages expert designation. Plaintiff does not reference any hardships or other factors amounting to a “substantial justification” for its failure to designate Mr. Taylor as its damages expert. Accordingly, Plaintiff’s attempt to designate Robert Taylor through its eleventh hour submission of a rebuttal expert report is untimely.

The district court also determined that it did not want to reward the Plaintiff’s disregard of court’s orders: The Court also recognizes that to allow Plaintiff’s abuse of and disregard for the Court’s orders to be essentially rewarded through the use of Taylor’s damages report at trial would erode the force and effect of the pretrial orders and the Court’s authority. The Court notes that Spectrum timely designated a damages expert, which put Plaintiff on notice of Spectrum’s intentions on May 20, 2013, and Plaintiff failed to supplement its expert designation by November 28, 2014. The scheduling order restricts expert witnesses that can be used to “rebut evidence on the same subject matter identified in an expert report submitted by another party” to “any expert designated.” For these reasons, Robert Taylor can not be used by Plaintiff to rebut Spectrum’s damages expert because Taylor was not designated to be Plaintiff’s damages expert by the deadline in the scheduling order. As such, the Court finds that Plaintiff’s failure to timely designate Taylor as an expert violated the Court’s order and the federal rules.

Accordingly, the district court excluded the Plaintiff’s damage expert.

Dr. Greens, Inc. v. James Matthew Stephens
, Case No. 3:11-cv-638-JAH (CAB) (S.D. Cal. Feb. 5, 2016)

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

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