DR Distribs., LLC v. 21 Century Smoking, Inc., No. 12 C 50324, Slip Op. (N.D. Ill. Aug. 1, 2016) (Johnston, Mag. J.).
Magistrate Judge Johnston granted defendant’s motion to allow it to supplement its damages expert’s report in this intellectual property dispute.
As an initial matter, the Court noted that the parties had their dispute backwards. A party that identifies inconsistencies in an expert report has an obligation, pursuant to Fed. R. Civ. P. 26, to supplement its expert report. To the extent that the opposing party believes that the supplement is improper, untimely, prejudicial or otherwise problematic, it is the opposing party’s obligation to seek sanctions for the supplemental report pursuant to Fed. R. Civ. P. 37. In this case, defendant sought permission for its supplement pursuant to Rule 26. But defendant should have just served its supplemental report and left motion practice to plaintiff.
Regardless, the Court held that defendant could supplement its report. The report noted that a party that the report had said was not a party to the suit was in fact a party and stated that the fact did not change the expert’s analysis that there was no economic loss based upon plaintiff’s allegations.
The Court also noted that had the expert acknowledged his mistake during the deposition, taken a moment to review his analysis and stated on the record his supplemental opinion that there was no impact on his economic loss analysis, there would have been no need to serve a supplemental report. The 1993 Advisory Committee Notes to Rule 26 make it clear that when an expert corrects his opinions during a deposition, no supplemental report is required.