Opinion
Case No. 8:04-CV-2101-T-MAP.
March 27, 2006
ORDER
After the deadline for serving experts' reports had passed, the Defendant furnished the Plaintiff a report by its expert opining for the first time '062 patent was invalid. As a result, Plaintiff seeks to strike the report as untimely and because the report fails to adequately state the bases and reasons for the expert's opinion (doc. 125). See generally Oxford Gene Tech. Ltd. v. Megen Ltd., 345 F. Supp. 2d 431, 436 (D. Del. 2004). Alternatively, Plaintiff seeks an order that directs the Defendant to supplement its expert's report so that it complies with Fed.R.Civ.P. 26(a)(2)(B), gives Plaintiff the opportunity to depose the Defendant's expert, and allows time thereafter to serve a rebuttal report if necessary. After a hearing on the matter, the Plaintiff's motion is granted in part and denied in part as outlined below.
ORDERED:
1. The Defendant is to supplement Dr. Stern's expert report by April 7, 2006, so that it includes an element-by-element comparison for each allegedly invalid claim against each alleged prior art reference together with an explanation of the factual inquiries underlying an obviousness determination.
2. Plaintiff will have until May 15, 2006, to depose Dr. Stern.
3. To the extent Plaintiff is required to supplement its experts' reports pursuant to Fed.R.Civ.P. 26(e), it should do so by May 22, 2006.
4. In all other respects, the Plaintiff's motion is denied.
DONE AND ORDERED.