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Sierrapine v. Refiner Products Manufacturing

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 16, 2010

SIERRAPINE,
PLAINTIFF,
v.
REFINER PRODUCTS MANUFACTURING, INC., DEFENDANT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Plaintiff SierraPine ("Plaintiff") seeks redress from Defendant Refiner Products Manufacturing, Inc. ("Defendant") for breach of contract. Before the Court is Defendant's Motion to Strike Plaintiff's Rebuttal/Supplemental Experts (ECF Nos. 69 and 71).

The amended Pretrial Scheduling Order extended the deadline for parties to exchange expert witnesses (ECF No. 40). Both parties had until August 2, 2010 to disclose their respective expert witnesses and corresponding expert reports, which they did. On September 15, 2010, Plaintiff timely added Mrs. Reinhall and Taylor as rebuttal expert witnesses to Defendant's experts.

Mr. Reinhall is an expert in the causes of vibrations in heavy machinery. Mr. Taylor is a certified public accountant who can testify to accounting principals and the effect of the shaft assemblies' down time on Plaintiff's profits and losses. Their expert reports were properly attached to the filing. Defendant contends that listing Mrs. Reinhall and Taylor as "rebuttal" experts is improper and move to strike their inclusion as witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C).*fn1

Rule 26(a)(2)(D), and this Court's Pretrial Scheduling Order (ECF No. 8), state that within twenty (20) days after the designation of expert witnesses, any party may designate a supplemental list of experts who will express an opinion on a subject covered by an expert from the adverse party. This right is only available to a party who has not previously disclosed their expert witnesses. The rule prevents parties from attempting to add additional witnesses onto their expert lists subsequent to the required and agreed-upon exchange date.

Plaintiff's rebuttal witnesses should have been originally filed with their other experts on August 2, and are improper witnesses according to the Pretrial Scheduling Order. However, the parties' trial date is set for February 2012. Expert discovery continues through December 29, 2010 (See ECF No. 74).

Both parties have sufficient time to request additional discovery deadline extensions to properly amend their witness lists. Such an extension should not prejudice either party, given the length of time before trial.

Therefore, Defendant's Motion to Strike is GRANTED.*fn2

IT IS SO ORDERED.


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