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Marical, Inc. v. Cooke Aquaculture Inc.

United States District Court, D. Maine

August 31, 2017

MARICAL, INC., et al., Plaintiffs
v.
COOKE AQUACULTURE INC., et al., Defendants

          MEMORANDUM OF DECISION ON MOTIONS TO STRIKE EXPERT REPORTS

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE.

         In this action, Plaintiffs and Counter-claim Defendants Marical Inc., Europharma AS, and Europharma Inc. Canada (“Plaintiffs”), allege that Defendants and Counter-claim Plaintiffs Cooke Aquaculture Inc., Cooke Aquaculture USA Inc., True North Salmon Co. Ltd., True North Salmon U.S. Inc., True North Sales U.S. Inc., and Salmones Cupquelan SA (“Defendants”), produce and import salmon raised by methods that infringe Plaintiffs' United States patents, which patents teach methods for raising pre-adult anadromous fish. (Complaint, ECF No. 1.) In their counterclaim for declaratory judgment, Defendants seek a judgment of invalidity and non-infringement. (Answer and Counterclaims, ECF No. 16.)

         The matter is before the Court on the following discovery motions, [1] all of which seek to limit or preclude expert testimony based on the substance of the expert witness disclosures and/or timeliness considerations:

Defendants' Motion to Strike New Contentions in [Steven H. Jury, Ph.D.'s] Reports (ECF No. 259);
Plaintiffs' Motion to Strike Portions of the Reports of Terrence M. Bradley, Ph.D. (ECF No. 263);
Plaintiffs' Motion to Strike the Expert Report of the Honorable Gerald J. Mossinghoff (ECF No. 264).

         Following a review of the record, and after consideration of the parties' arguments, the Court denies the motions.

         Discussion

         Federal Rule of Civil Procedure 26 governs the duty to disclose information in discovery. As to expert witnesses, Rule 26 requires that a party disclose expert witnesses who may be used at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. Expert disclosures ordinarily include the production of a written report prepared and signed by the expert witness. Fed.R.Civ.P. 26(a)(2). In this District, the deadline for expert designations in most cases, including patent cases, is established by a scheduling order. D. Me. Loc. R. 16.2(c).[2]

         Under the governing procedural rules, parties have a duty to supplement information given by expert witnesses in their reports and at their depositions. Specifically, a party must supplement the expert witness disclosures at least 30 days prior to trial. Fed.R.Civ.P. 26(e)(2), (a)(3). Compliance with the deadline, however, is not the sole consideration when determining whether to permit a party's supplemental designation. Ordinarily, a party cannot fundamentally change the substance of an expert witness's anticipated testimony through a supplemental designation. SD3, LLC v. Rea, 71 F.Supp.3d 189, 194- 95 (D.D.C. 2014); Tripkovich v. Ramirez, No. 2:13-CV-6389, 2015 WL 3849392, at *5 (E.D. La. June 22, 2015); State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., No. 6:06-CV-1757, 2008 WL 11342764, at *2 (M.D. Fla. Aug. 26, 2008).

         Both parties contend that certain expert opinions should be stricken because the opinions were not adequately disclosed in, or are inconsistent with, prior responses to contention interrogatories posed to the party. The parties further argue that because fact discovery has closed, they are prejudiced by the newly disclosed opinions because the underlying facts upon which the opinions depend can no longer be “discovered.”

         Interrogatories that seek the bases of a party's claims or defenses are within the scope of permissible discovery. Pursuant to Rule 33,

[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

Fed. R. Civ. P. 33(a)(2). Rule 26 provides that answers to interrogatories may be supplemented or corrected “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ….” Fed.R.Civ.P. 26(e)(1).

         Based on these provisions, the Court is not persuaded by the parties' basic assertion that because an expert opinion is “new” when compared to a party's prior responses to contention interrogatories, the opinion is inherently subject to exclusion. While Rule 37(c) authorizes the Court to sanction the failure to disclose or the failure to supplement an earlier disclosure or response, the Rules also permit a party to supplement and correct its contentions. See, e.g., Genband U.S. LLC v. Metaswitch Networks Corp., No. 2:14-CV-33, 2016 WL 122969, at *1 (E.D. Tex. Jan. 9, 2016).

         A. Defendants' Motion to Strike New Contentions in [Steven H. Jury, Ph.D.'s] Reports (ECF No. 259)

         Defendants object to the following “new contentions” expressed in ...


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