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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…

The Medicine Co. v. Mylan Inc., No. 11 C 1285, Slip Op. (N.D. Ill. Apr. 17, 2014) (St. Eve, J.).

Judge St. Eve granted in part and denied in part plaintiff The Medicine Company’s (“TMC”) Daubert motion seeking to exclude certain opinions of defendants (collectively “Mylan”) in this patent case involving an injectable anticoagulant …

The Court also struck some, but not all, of the experts’ opinions based upon trader usage. Trading Techs. Int’l, Inc. v. CQG, Inc., No. 05 C 4811, Slip Op. (N.D. Ill. Sep. 10, 2014) (Coleman, J.).

Judge Coleman granted in part and denied in part defendants’ (collectively “CQG”) motion to strike portions of plaintiff …

Sloan Valve Co. v. Zurn Indus., Inc., No. 10 C 204, Slip Op. (N.D. Ill. Aug. 23, 2013) (St. Eve, J.).

Judge St. Eve granted defendants’ (collectively “Zurn”) Daubert motion in limine to exclude plaintiff Sloan Valve’s “corporate intellectual property practice” expert in this patent infringement case involving flush valves for use in plumbing …

Sara Lee Corp. v. Kraft Foods Inc., No. 09 C 3039, Slip Op. (N.D. Ill Apr. 1, 2011) (Denlow, Mag. J.).
Judge Denlow, with a nod to baseball’s opening day, denied plaintiff Sara Lee’s motion to compel expert discovery from defendants (collectively “Kraft Foods”) in this trademark dispute. Kraft Foods retained an expert who helped create a survey and then used that survey as part of his expert opinion regarding advertising of Sara Lee hot dogs. The report opined that Sara Lee’s advertisement — “Taste America’s Best Beef Franks” — was misleading because it led consumers to believe that it was Sara Lee’s Angus Beef Franks rather than its Ball Park Beef Franks that were being advertised. Kraft Foods also used the expert in a consulting capacity regarding another Sara Lee hot dog advertisement. The Court’s in camera review showed that all the expert did was advise as to how a survey could be conducted, and that he did not know whether a survey was conducted or what the results were if a survey was conducted.
The Court noted that most courts allow an expert to have both testifying and non-testifying roles, but that the production obligation is generally broad. The only material that can be withheld as privileged or work product is information generated or considered “uniquely” as a consultant. And ambiguity was to be decided in favor of production. Because the requested materials only discussed the studies regarding the advertisement for which the expert was not testifying, they did not need to be produced. Furthermore, because the materials did not provide facts, data or assumptions provided by counsel, they would not have to have been produced by a testifying expert based upon the recent revisions to the Fed. R. Civ. P. 26(a)(2)(B). Instead, the requested materials were protectable work product pursuant to Fed. R. Civ. P. 26(b)(4)(C).
Finally, the Court denied Kraft Foods’ motion for fees and costs because Sara Lee was substantially justified in seeking in camera review of the disputed communications.
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Continue Reading Plaintiff “Strikes Out”: Expert can be Both Testifying and Consulting

Bone Care Int’l, LLC v. Pentech Pharm., Inc., No. 08 C 1083, Slip Op. (N.D. Ill. Sep. 30, 2010) (Dow, J.).
Judge Dow decided the parties motions in limine in this patent infringement dispute. Of particular note, the Court made the following rulings:
The Court allowed defendants’ anticipation and written description invalidity defenses even though they were not properly disclosed or supported in defendants’ interrogatory responses or expert reports. The anticipation defense was so intertwined with the disclosed obviousness defense that there was no prejudice. And the parties argued the written description defense as part of a summary judgment motion. The Court, however, excluded other undisclosed invalidity defenses.
The Court allowed plaintiffs to present evidence regarding the priority date of one of its claims became there was a question of fact as to whether the claim had priority based upon an earlier, related application.
Plaintiffs were allowed to call defendants’ expert witnesses in plaintiffs’ case-in-chief so long as the testimony was not just cumulative. Plaintiffs could also call defendants’ experts. Even if defendants chose not to call them Defendants cannot turn an expert into a non-testifying expert pursuant to Fed. R. Civ. P. 26(b)(4)(B), once the expert issued a report and was listed on defendants’ witness list.
A parties’ witnesses should be called live whenever possible, unless the witness is unavailable.
Defendants’ expert was allowed to add references after the expert report deadline and after his deposition, by identifying the references in a deposition errata sheet and in corrected expert report pages. The references did not significantly change the experts analysis. And plaintiffs questioned the expert about the references during his deposition. So, plaintiffs were not prejudiced.
Defendants were also allowed to rely upon their experts’ rebuttal and supplemental reports became the arguments in the reports all properly responded to Plaintiffs’ reports.
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Continue Reading Expert Allowed to Amend Expert Report Via Deposition Errata Sheets

Midtronics, Inc. v. Aurora Performance Prods., LLC, No. 06 C 3917, Slip Op. (N.D. Ill. Oct. 14, 2010) (Shadur, Sen. J.).
Judge Schadur granted plaintiff Midtronics’ motion in limine to exclude defendants’ expert submission offered after entry of the parties’ Final Pretrial Order. Defendants argued their submissions were timely pursuant to Fed. R. Civ. P. 26(a)(2)(D)(1) because they were served more than ninety days before trial. But the Court noted that Rule 26(a)(2)(D)(1) is an alternative rule that was preempted by entry of the Final Pretrial Order, and by the close discovery before that.
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Continue Reading Expert Opinions Served After Final Pretrial Order Are Excluded

Bone Care Int’l, LLC v. Pentech Pharm. Inc., No. 08 C 1083, Slip Op. (N.D. Ill. Jul. 16, 2010) (Ashman, Mag. J.).
Judge Ashman granted plaintiffs’ motion to strike defendants’ expert affidavit (the “Affidavit”) in this patent case. The Affidavit was filed in support of defendants’ Daubert motion filed after the close of fact discovery. The Court struck the Affidavit for three reasons:
The Court had already warned the parties regarding discovery that “enough [was] enough.”
The Affidavit, which contained substantive opinions and calculations, would prejudice plaintiffs. Discovery was closed, trial was looming, and plaintiffs would not have had enough opportunity to consult their experts or to file supplemental reports addressing the Affidavit.
Defendants had the information in the Affidavit at least by December 2009. Defendants could have filed the information as part of a timely expert report.
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Continue Reading Court Strikes Post-Discovery Expert Declaration