Masimo Corporation v. Philips Electronic North America Corporation, et al., C.A. No. 09-80 – LPS-MPT; 11-742-LPS-MPT, August 15, 2016.

Stark, C. J. The court reserves ruling on a motion to file an amended complaint and rules on various expert issues.

Plaintiff’s motion to strike a reply invalidity expert report of Dr. Dyro is denied. It was not unreasonable for defendant to wait until a disclosure, and plaintiff is not prejudiced. The court declines to strike either party’s expert relating to non-infringing alternatives due to the importance of the issue, the lack of prejudice, and the totality of the circumstances such that the trial date is not disrupted. Defendants’ motion to strike the reply expert of Dr. Quill relating to reasonable royalty factors is denied. The report was responsive to Defendants’ expert and was timely served. There is nothing per se improper in using a different expert in a reply report.