Opinion
Case No. 15-cv-0595-BAS-MDD
09-19-2017
OBESITY RESEARCH INSTITUTE, LLC, Plaintiff, v. FIBER RESEARCH INTERNATIONAL, LLC, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S REBUTTAL EXPERT REPORT OF RICHARD HOFFMAN
[ECF NO. 385]
Before the Court is Plaintiff's Motion to Strike the Expert Report of Richard Hoffman and Preclude his Testimony at Trial filed on August 18, 2017. (ECF No. 385). Defendant responded in opposition on September 8, 2017. (ECF No. 401). Plaintiff filed a reply on September 15, 2017. (ECF No. 409).
There is a long and sordid history of unnecessary discovery litigation in this case. (See ECF No. 271 at 8-10). This motion adds another page to the chapter.
It starts with Plaintiff ORI's decision to have its damages expert, Neil J. Beaton, express no opinion whatsoever in his initial expert report. (See ECF No. 81). Despite the fact that Defendant FRI was seeking disgorgement of ORI's profits as its measure of damages, ORI had Mr. Beaton opine that he could not provide an opinion about damages without financial records of FRI. (Id.). FRI served the report of its rebuttal expert, Richard Hoffman, in which he similarly expressed no opinion, as there was nothing to rebut, but added his view of the methodology he would have used to determine damages. (Id.). ORI moved to strike the Hoffman rebuttal report as not a proper rebuttal to the non-opinions expressed by their expert. (ECF No. 80). The Court did strike Mr. Hoffman's report to the extent that addressed his hypothetical methodology as it was not in response to anything in the Beaton report. (ECF No. 81).
Then, ORI served the supplemental report of Mr. Beaton, FRI served the supplemental rebuttal report of Mr. Hoffman and FRI moved to strike certain opinions of Mr. Beaton as improper supplementation. (ECF No. 177). The Court granted FRI's motion in its entirety, striking all but two opinions expressed by Mr. Beaton in his supplemental report. (ECF No. 271). This Court's Order was affirmed by the district court on August 4, 2017. (ECF No. 381).
ORI now claims that the supplemental expert report of Mr. Hoffman should be stricken and Mr. Hoffman be precluded from testifying. (ECF No. 385). ORI asserts that because Mr. Hoffman was responding to opinions expressed by Mr. Beaton in his supplemental expert report, and all but two of Mr. Beaton's opinions have been struck, that Mr. Hoffman's rebuttal to Mr. Beaton's stricken opinions also must be struck. (Id.).
The absurdity of ORI's position should be obvious. Mr. Hoffman properly responded to opinions expressed by Mr. Beaton. See Rules 26(a)(2)(B) and (D)(ii), Fed. R. Civ. P. The fact that certain of the opinions expressed by Mr. Beaton later were struck does not make the Hoffman supplemental report improper. It was a proper rebuttal report. Moreover, two of Mr. Beaton's opinions were not struck. ORI's assertion that Mr. Hoffman's report only addressed the stricken opinions of Mr. Beaton is not persuasive. The Court has read both reports and disagrees. And, even if correct, it would not be a basis to strike a report which was proper rebuttal when filed. Plaintiff's motion is DENIED.
To the extent that ORI decides to and is permitted to call Mr. Beaton as an expert witness and the district court allows Mr. Beaton to offer his surviving opinions, FRI may seek to call Mr. Hoffman to rebut those opinions, as expressed in Mr. Hoffman's supplemental rebuttal expert report.
CONCLUSION
Plaintiff's motion to strike the supplemental rebuttal expert report of Richard Hoffman is DENIED.
IT IS SO ORDERED.
Dated: September 19, 2017
/s/_________
Hon. Mitchell D. Dembin
United States Magistrate Judge