Court Excludes Plaintiff's Experts Where Experts Failed to Comply with Rule 26 Disclosures

by Jeffer Mangels Butler & Mitchell LLP
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In this patent infringement action, the defendants, Hangzhou Langhong Technology Co., Ltd. and Langhong Technology USA Inc., moved to exclude the testimony of plaintiff's experts on infringement and damages. The district court had previously issued a scheduling order setting March 26, 2014 as the deadline for the parties to designate their experts and to make the disclosures required by Rule 26(a)(2) of the Federal Rules of Civil Pocedure.

As explained by the district court, Rule 26(a)(2) requires that the expert's report must contain, inter alia, a complete statement of all opinions the witness will express and the basis and reasons for them. Fed. R. Civ. P. 26(a)(2)(B)(i). The district court then found that "[t]he report prepared by Rogers provides virtually none of the information required by Rule 26(a)(2)(B)(i). Plaintiff's response to the motion asserts as an excuse for noncompliance lack of sufficient discovery before Rogers prepared his report for him to have the information he would need to comply with the requirements of Rule 26(a)(2)(B). After a thorough review of the material provided by the parties, the court is not persuaded that plaintiff's excuse for noncompliance with the scheduling order as to Rogers has merit. Plaintiff had ample time before Rogers prepared and submitted his report for the collection of whatever information it needed for Rogers to provide the information in his report required by Rule 26(a)(2)(B)(i)."

The district court then concluded that a "just order to address plaintiff's failure to obey the part of the November 26, 2013 pretrial order that fixed a deadline of March 26, 2014, for the service of a report by Rogers making the disclosures required by Rule 26(a)(2) would be an order that Rogers will not be permitted to serve as an expert witness for plaintiff in this action."

The district court justified this sanction based on Fed.R.Civ.P. 37. "Such a sanction finds support as well in Rule 37(e)(1), which authorizes a court to deny a party the use of information at a hearing or at trial if the party has failed to provide that information as required by Rule 26(a), unless the failure was substantially justified or is harmless. Plaintiff has not persuaded the court that its failure to provide the information it was obligated to provide relative to the opinions of Rogers in compliance with the November 26, 2013 scheduling order was substantially justified or harmless. The court has concluded that no lesser sanction would adequately address plaintiff's failure to comply with the scheduling order as to Rogers."

The district court then addressed another expert of plaintiff, which it found slightly better, but by much. "The DiLonardo report is a slight improvement over the Rogers report inasmuch as it does contain conclusory opinions of DiLonardo that certain devices of defendants have characteristics that cause those devices to infringe one or more of the patents at issue. However, his report is deficient because it obviously does not have all his opinions, nor does it express the basis and reasons for his opinions. The declaration of DiLonardo that plaintiff provided with its response to the motion establishes that the March 26, 2014 DiLonardo report also had the shortcoming that it did not, as Rule 26(a)(2)(B)(ii) requires, disclose facts or data considered by DiLonardo in reaching his opinions -- the declaration established that, in addition to the things DiLonardo disclosed in his original report, he considered charts that were marked as Appendices A-D to plaintiff's responses to defendants' first set of interrogatories. Those appendices apparently were plaintiff's claim charts, which had been served by plaintiff on defendant before March 26, 2014."

However, with respect to this report, the district court did not find it appropriate to completely exclude the expert. Instead, the district court limited the expert to what was strictly disclosed in the expert report. "As an alternative to its request that DiLonardo's testimony be excluded, defendants requested that the court rule that his testimony should be strictly limited to the contents of the DiLonardo report plaintiff served on March 26, 2014. Consistent with that alternative request, the court has concluded that the testimony of DiLonardo related to plaintiff's contention that defendants' devices infringe the patents at issue will be strictly limited to the contents of his initial report and the contents of the Appendices A-D that were served with plaintiff's responses to defendants' first set of interrogatories. If, as appears to be the case, defendants were aware of Appendices A-D at the time they received DiLonardo's March 26, 2014 report, they are not in a position to claim surprise that Appendices A-D provide some of the detailed information required by Rule 26(a)(2)(B)."

With respect to this expert, the district court also found plaintiff's excuse of insufficient discovery to be without merit. "Plaintiff's response to defendants' motion to exclude as it pertains to DiLonardo asserts as an excuse lack of sufficient discovery before DiLonardo prepared his March 26, 2014 report. The court has concluded that that excuse has no more merit as to DiLonardo than it did as to Rogers."

Accordingly, the district court excluded one of plaintiff's experts and strictly limited the testimony of the other expert to what was disclosed in the expert report.

Invue Security Products Inc. v. Hangzhou Langhong Technology, Co., Ltd., Case No. 4:13-cv-457-A (N.D. Tex. July 17, 2014)

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