Chief Judge Stark Permits Sur-Rebuttal Expert Report with Costs in Lieu of Striking Untimely Reports

April 28, 2016

Publication| Intellectual Property

In Andover Healthcare, Inc. v. 3M Company, C.A. No. 13-0843-LPS (D. Del. Mar. 25, 2016), Chief Judge Stark denied the defendant’s motion to strike the plaintiff’s untimely expert reports. The defendant moved to strike three of the plaintiff’s rebuttal reports because they were untimely (served two weeks after the set deadlines despite the defendant’s objection to any extension and without leave of the Court). Judge Stark found that the expert reports were untimely under the scheduling order and the delay prejudiced the defendant. However, Judge Stark also found that the content of the reports was proper rebuttal, and the plaintiff and its experts were diligent in preparing the reports. In a short oral order, Judge Stark went through the “Pennypack factors” weighing the prejudice on the defendant for the late service and the effect a strike would have on the plaintiff given the good faith by the plaintiff in preparing the reports. The Court found that the plaintiff’s “explanation for why it took so long for it to prepare and serve its supplemental reports is credible and shows diligence (although its failure to explain why it did not seek leave to extend the deadline is troubling and contributes to the Court’s willingness to consider shifting costs)[.]” Thus, Judge Stark found that permitting the defendant to serve a sur-rebuttal report and apply for reimbursement of costs was an appropriate remedy.

Analysis: This case shows Judge Stark’s practice of carefully weighing the prejudice of untimely disclosure of expert opinions with the consequence of striking those opinions.

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