NetAirus Technologies, LLC v. Apple, Inc., No. 2:10-cv-03257, slip op. (C.D. Cal. July 16, 2013).
After allowing the filing of supplemental expert reports, the NetAirus court also allowed Plaintiff to designate a new damages expert. Concluding the duplication of effort was largely as a consequence of a re-examination that Defendant commenced, the court allowed the new expert while reserving judgment on evidentiary issues.
In “light of the passage of time and the re-examination result,” the District Court set a deadline for supplemental expert reports. Id. at 1. The Order setting the deadline did not specify whether Plaintiff could use a new expert for its supplemental damages report because the issue had not been raised when the Order issued. Id.
When Plaintiff disclosed it intended to engage a new damages expert to produce its supplemental report, Defendant objected. Id. The parties then filed a joint motion for clarification of the scheduling Order. Id.
The District Court allowed Plaintiff to substitute its damages expert, and reserved ameliorative measures, such as the exclusion of prior reports. Id. at 4. The court analyzed the dispute this way:
- Neither party advanced a “compelling position” regarding the substitution of the damages expert. Id. at 3. There was no compelling explanation of why Plaintiff needed to select a new, previously undesignated expert. As to Defendant, its argument that a new expert would require it to duplicate some work was largely driven by Defendant’s own decision to put the matter in re-examination, which resulted in a change in the damages issues. Id. In any event, the work could be completed in a timely manner. Id. at 4.
- Defendant had the opportunity to submit a rebuttal report. Concerns about surprise were unfounded. Id.
- Plaintiff could not, as Defendant seemed to suggest, be required to work with, compensate and rely upon an expert that it apparently no longer wanted to use. Id. at 4.
- Issues regarding whether Plaintiff’s prior damages reports could be the subject of cross-examination and the admissibility of such testimony could be addressed through motions in limine or trial objections. Id.