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United National Maintenance, Inc., A Nevada v. Testimony of Patrick Kennedy Corporation

February 18, 2011

UNITED NATIONAL MAINTENANCE, INC., A NEVADA CORPORATION,
PLAINTIFF,
v.
TESTIMONY OF PATRICK KENNEDY CORPORATION, INC., A CALIFORNIA CORPORATION,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. Magistrate Judge United States District Court

ORDER GRANTING MOTION IN LIMINE TO EXCLUDE FUTURE DAMAGES THEORY AND OPINION SAN DIEGO CONVENTION CENTER [Doc. No. 136]

Defendants filed a motion in limine seeking to exclude Plaintiff's expert, Patrick Kennedy, from submitting a report or providing testimony regarding future lost profits on the grounds that the testimony is: 1) untimely disclosed and 2) unreliable, flawed and contrary to law. The Plaintiff filed an opposition and Defendants filed a reply. The hearing on the motion was held on February 17, 2011 before Judge Battaglia. Appearing on behalf of the Plaintiff was Jacob Slania and Joseph Ergastolo and Andrew Schouten appeared on behalf of Defendants. Based upon the parties moving papers, arguments made during the hearing and for the reasons set forth below, the Defendants' motion in limine to exclude the future damages opinion and testimony of Dr. Kennedy is hereby GRANTED.

Relevant Procedural Background

The instant action was filed in this Court on November 13, 2007. [Doc. No. 1.] The Court issued a Scheduling Order, [Doc. No. 64], on January 27, 2009, which set the following deadlines: Expert Reports due September 9, 2009, Rebuttal Expert Reports due September 30, 2009; Fact Discovery Cut Off August 10, 2009; Expert Discovery Cut-Off November 11, 2009; and the Pre-Trial Conference was set for April 12, 2010.

On August 21, 2009, the parties filed a joint motion for amended scheduling order. [Doc. No. 83.] The Joint Motion was granted and the following deadlines extended: Plaintiff's Expert Disclosure deadline was extended to September 30, 2009; Defendants' Expert Disclosure deadline was extended to October 21, 2009; Rebuttal Expert disclosure deadline was extended to November 12, 2009; Fact Discovery Cut-Off was extended to September 15, 2009*fn1 ; and the Expert Discovery Cut-Off was extended to December 18, 2009. [Doc. No. 84.]

On March 26, 2010, the parties filed a joint motion to vacate the pre-trial conference date, [Doc. No. 108], which was granted, [Doc. No. 109], and the pre-trial conference was reset for August 2, 2010. On June 17, 2010, the parties filed a second motion to vacate the pre-trial conference date, [Doc. No. 115], which was granted, [Doc. No. 116], and the pre-trial conference was reset for December 6, 2010.

An amended scheduling order [Doc. No. 121], was issued by the Court on August 9, 2010, which reset the pre-trial conference for November 1, 2010. The parties submitted a joint motion to continue the deadline to meet and confer pursuant to Local Rule 16.1(f)(4) from October 12, 2010 to October 25, 2010.

The parties consented to Magistrate Judge jurisdiction on October 5, 2010, [Doc. No. 127], and submitted a joint motion for order scheduling pre-trial matters on October 14, 2010, [Doc. No. 128], which was granted in an order on October 21, 2010, [Doc. No. 129], which set the pre-trial conference for February 4, 2010 and the trial date for March 21, 2011.

Legal Standard

Under Rule 26(a)(2)(B), a party using an expert witness must disclose a report containing, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor." Fed. R. Civ. P. 26(a)(2)(B). The purpose of the rule is to eliminate "unfair surprise to the opposing party." Sylla-Sawdon v.Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir.1995).

Under Federal Rule of Civil Procedure 37(c)(1), a party who fails to provide information required to be disclosed under Rule 26(a), which includes expert reports, is not allowed to use that information at a trial, unless the failure is substantially justified or is harmless.*fn2 As amended in 1993, this rule provides for automatic exclusion of expert information that was not disclosed despite the existence of an independent duty to disclose under Rule 26(a) and 26(e)(1). See Advisory Committee Notes, 146 F.R.D. 682, 691 (1993). This new sanction was "intended to put teeth into the mandatory initial disclosure requirements added by the 1993 amendments." 8A Charles Alan Wright, Arthur Miller & Richard Marcus, Federal Practice and Procedure: Civil 2d § 2289.1, at 704. A district court's decision to admit or exclude evidence under these rules is reviewed for abuse of discretion.*fn3

Discussion

In ruling on the Defendants' motion in limine, the Court must consider 1) the timeliness of and explanation for the failure to disclose the evidence; 2) the potential prejudice to the opposing party in allowing the evidence; and 3) the ...


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