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Britz Fertilizers, Inc. v. Bayer Corp.

June 17, 2009

BRITZ FERTILIZERS, INC., PLAINTIFF,
v.
BAYER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO EXCLUDE OR LIMIT EXPERT WITNESS TESTIMONY (Document 99)

Plaintiff Britz Fertilizers, Inc., ("Britz") filed the instant motion to exclude or limit expert witness testimony on April 22, 2009. The matter was heard on June 5, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Ted Frame, Roger Schrimp and Eric Sousa appeared on behalf of Britz. T. Mark Smith appeared on behalf of Bayer Corporation and Bayer Cropscience, Inc. ("Bayer").

BACKGROUND

On February 8, 2008, the Court issued a Scheduling Conference Order setting the deadline for disclosure of expert witnesses as July 21, 2008. Supplemental or rebuttal disclosures were due by August 20, 2008.*fn1 On July 21, 2008, the Court granted the parties' stipulation to continue to date for expert disclosure to August 11, 2008, and the date for supplemental or rebuttal expert disclosures to September 3, 2008. By letter dated August 7, 2009, the parties agreed to a final extension to August 18, 2008. The letter further stated that the agreement did not pertain to non-retained experts and set forth Bayer's counsel's belief that neither party was precluded from supplemental disclosure of experts pursuant to Rule 26(2)(C)(ii) and/or the February 8, 2008, Scheduling Conference Order. Exh. C, attached to Declaration of Roger M. Schrimp ("Schrimp Dec.").

Bayer's first disclosure was made on April 30, 2007, when it disclosed two retained experts, Sayed D. Badr and Dr. Richard Wilson, as well as non-retained experts Lewis P. Christensen and Dr. Mark Steinberg.*fn2 The disclosure stated that Christensen and Steinberg would testify "regarding matters addressed in their testimony in the Skouti v. Britz action." Exh. D, attached to Schrimp Dec.

On August 18, 2008, Bayer made a further expert witness disclosure in which it added Steven Cornwell as a retained expert and James Betts as a non-retained expert. Bayer indicated that Betts would testify "regarding matters involving his representation of plaintiffs in the Skouti v. Britz action and the conduct and outcome of the litigation and trial therein including, but not limited to, Britz Fertilizers, Inc.'s admission of liability." Exh. E, attached to Schrimp Dec.

On September 3, 2008, Bayer submitted another supplemental expert disclosure in which it identified Scott Hicks as a non-retained expert. Bayer stated that Hicks would testify "regarding matters addressed in his testimony in the Skouti v. Britz action." Exh. F, attached to Schrimp Dec.

Bayer submitted its final disclosure entitled "Rebuttal Disclosure of Expert Witnesses" on September 16, 2008. Bayer stated that in addition to the topics previously identified, non-retained experts Christensen, Hicks, Betts and Steinberg "will opine as to the utility of field trial studies in the Skouti v. Britz action." Exh. G, attached to Schrimp Dec.

By this motion, filed on April 22, 2009, Britz seeks to exclude the expert testimony of Christensen, Steinberg, Hicks and Betts based on Bayer's failure to disclose the witnesses as retained experts and provide written expert reports. Alternatively, Britz moves to limit the scope of their testimony.

Bayer filed its opposition on May 22, 2009. Britz filed its reply on May 29, 2009.

DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 26(a)(2)(A) requires that each party "disclose to the other parties the identity of any person who may be used at trial to present evidence under Federal Rule of Evidence 702, 703and 705." Rule 26 further provides:

Unless as otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness .... The report must contain a complete statement of all opinions the ...


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