Medtronic Inc. v. Edwards Lifesciences Corp., No. 8:12-cv-00327-JVS-JPR, slip op. (C.D. Cal. August 19, 2013).
The Medtronic court denied Defendant’s motion to strike Plaintiff’s supplemental damages report when it decided the report was not an attempt to fix errors or a flawed methodology. But, it did require Plaintiff to pay the cost of Defendant’s expert supplemental rebuttal report.
Defendant moved to strike the supplemental expert report of Plaintiff’s expert, John R. Bone. Id. at 1.
Bone based his original damages calculation on a priority date that counsel for Plaintiff told him to assume. Id. at 1. When Plaintiff later stipulated to a different priority date, Bone prepared a supplemental report showing revised damage calculations reflecting the revised (and higher) royalty rates. Id. at 2.
Even though Plaintiff’s instruction to its expert to use a legally flawed date was “fairly inexplicable,” the court denied Defendant’s motion to strike, reasoning:
- Bone’s supplemental report did nothing more than apply new start and end dates for the damages calculation – the type of supplementation Rule 26 envisions. Id. at 5.
- Bone did not correct errors in his methodology or put forward any new type of damages theory in his supplemental report. Id.
- The supplemental report was not a “new” opinion, and did not “strengthen” or “deepen” the opinions in the initial report. Id.
- There was no suggestion that Plaintiff gave Bone the wrong priority date in an effort to “sandbag” Defendant, nor was there any indication that Bone failed to review documents that would have disclosed the error made regarding the date. Id. at 6.
Finally, the court concluded it would not strike the supplemental report, even if it were improper, because Defendant did not prove the report changed the damages landscape or presented a fundamentally flawed methodology. Id. at 6. Bone’s change in the royalty rate was not arbitrary, and, therefore, could not be challenged in a supplemental rebuttal report. Id. at 7. Moreover, Bone had not been deposed despite extensive available time before trial. Thus, there was time to mitigate prejudice, if any. Id. at 8.
Unwilling to allow Plaintiff to “come away unscathed by its unexplained assertion of incorrect dates,” the court directed Plaintiff to reimburse Defendant for the costs associated with preparing its supplemental rebuttal report. Id.