Sloan Valve Co. v. Zurn Indus., Inc., No. 1:10-cv-00204, slip op. (N.D. Ill. June 19, 2013).
Sloan Valve makes clear that, if a reply report is allowed, Plaintiff’s expert will be allowed to respond to criticisms in Defendant’s rebuttal report, but no more. Also, consider this case when deciding whether to allow Plaintiff the opportunity to file a reply report.
Sloan sued Zurn for infringement. The parties submitted initial expert reports and rebuttal reports. By agreement, Sloan’s damages expert, Richard F. Bero, also submitted a reply expert report. Id. slip op. at 1-2. Zurn moved to strike Bero’s reply report and asked to amend the report of its own damages expert, Ivan Hoffman. Id. slip op. at 1.
The court granted the motion to strike in part, then denied the motion to amend. Id.
Bero’s Reply Report
- Weighted and Un-Weighted Ratios – In his initial report, Bero disclosed both the weighted and un-weighted ratios of the total number of collateral units sold, but he used only the weighted ratio in his damages analysis. Id. slip op. at 3. Hoffman criticized Bero’s use of the weighted ratio. In his reply report, Bero calculated the collateral profit per product using both ratios to show that it made little difference which ratio was used. Id. The court concluded Bero (1) had not offered a new opinion, (2) had only responded to Hoffman’s criticism, and thus the calculation was proper for a reply report. Id.
- Estimation of Incremental Costs – Zurn admittedly failed to provide incremental cost data to Sloan. When Bero relied on Sloan’s incremental costs, Hoffman criticized him for failing to include some items Zurn included in incremental costs. Id. In his reply, Bero updated his calculations to reflect the incremental costs Zurn included. The court held Bero’s report was directly responsive to the criticism and declined to strike it. Id.
- New Schedule 20.0 – Bero also included an alternative collateral sales calculation in his reply report. The calculation was new, and Sloan admitted as much. But, Sloan had access to all the underlying data before the initial report. The court struck this portion of the reply report as an inappropriate new opinion. Id. slip op. at 4.
Hoffman’s Proposed Supplemental Report – The court refused to grant leave to Hoffman to (1) address the arguments Bero made in his reply report, and (2) to correct an inadvertent error in his initial report. Id. The court denied the request to correct the report, concluding the error was more than inadvertent because Hoffman had relied on Bero’s numbers without fully understanding them. Id. The court also concluded Hoffman had no right to respond to Bero’s reply responding to Hoffman’s criticisms. Id.