Opinion
No. CV07-8017-PCT-DGC.
October 20, 2011
ORDER
Plaintiff has filed a motion for new trial. Doc. 195. For the reasons that follow, the motion will be denied.
Plaintiff again complains that the Court erred in excluding the expert testimony of Anselmo Nagera. The Court explained its reasons for excluding his testimony, in detail, on July 20, 2009. See Doc. 118 at 8-10. Mr. Nagera was not timely disclosed as an initial expert by Plaintiff, and Plaintiff's subsequent attempt to disclose him as a rebuttal expert was inappropriate for reasons explained in the Court's previous order. Doc. 118. The Court's order was not set aside by the Ninth Circuit on appeal, and other courts have agreed with the conclusion. See, e.g., Atmel Corp. v. Information Storage Devices, Inc., 189 F.R.D. 410, 416 (N.D. Cal. 1999) ("to now allow Mr. Kern to testify on direct examination to matters deliberately ignored in his Rule 26(a)(2)(B) report would simply encourage litigants to evade the expert-disclosure rules. It would disrupt the orderly process of trial preparation to require a new round of expert reports and a new round of expert depositions"); see also Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D. N.J. 2004) (an expert's rebuttal report "is not an opportunity for the correction of any oversights in the plaintiff's case in chief.").
Plaintiff's motion takes issue with factual findings made by the Court after trial. Such disagreement does not provide a basis for a new trial.
Plaintiff asks the Court to order post-trial mediation. Given that Defendant prevailed at trial, the Court sees no basis for such an order.
IT IS ORDERED that Plaintiff's motion for a new trial (Doc. 195) is denied.