United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S REVISED MOTION TO STRIKE NEW WORK PROFFERED
BY EDWARD M. STOCKTON [RE: ECF 179]
LABSON FREEMAN United States District Judge
parties to this antitrust action have submitted expert
reports on a schedule set forth in a case management order.
See ECF 127. Defendant Chrysler now seeks to strike
fourteen tabs and related opinions in Plaintiff’s
expert’s Rebuttal Report for offering new evidence,
analysis, and theories that exceed the proper scope of
rebuttal. Plaintiff counters that each challenged tab
directly responds to and properly rebuts an opinion offered
by Defendant’s expert Glenn Woroch. For the reasons
stated below, the Court GRANTS IN PART and DENIES IN PART
to the case schedule, Plaintiff Stevens Creek’s expert
Edward Stockton executed an expert report on October 30,
2015, see Stockton Initial Report
(“Stockton”) at 30, ECF 135-3; Chrysler’s
expert Dr. Woroch executed an expert report on December 22,
2015, see Woroch Report (“Woroch”) at
55, ECF 156-11; and Mr. Stockton filed a rebuttal expert
report on January 13, 2016, see Stockton Rebuttal
Report (“Stockton Rebuttal”) at 24, ECF 156-13.
Defendant contends that fourteen of the tabs in Mr.
Stockton’s Rebuttal Report exceed the scope allowed for
February 9, 2016, Defendant filed an administrative motion
seeking leave to submit another report by Dr. Woroch to
respond to the allegedly new opinions. ECF 154. Because
Defendant failed to identify the opinions and analyses it
hoped to supplement, much less provide a sense of the
proposed supplementation, the Court denied this request for a
carte blanche but stated that Defendant could file a
motion to strike “specific opinions . . . Defendant
believes . . . surpassed the scope allowed for
rebuttal.” Id. at 3. Defendant has now filed
such a motion.
Rule of Civil Procedure 26, which governs parties’
disclosure obligations, demands that parties “make
[their] disclosures at the times and in the sequence that the
court orders.” Fed.R.Civ.P. 26(a)(1)(D). Parties must
accompany their disclosures of “the identity of any
[expert] witness . . . [with] a written report” that
“contain[s] (i) a complete statement of all opinions
the witness will express and the basis and reasons for
them.” Fed.R.Civ.P. 26(a)(2).
a court's scheduling order allows rebuttal reports, a
party may only submit an expert rebuttal ‘if the
evidence is intended solely to contradict or rebut evidence
on the same subject matter identified by another
party.’” In re Asbestos Products Liab. Litig.
(No. VI), No. 09-CV-74351X, 2012 WL 661673 at *1 (E.D.
Pa. Feb. 8, 2012) (citing Fed. R. Civ. Pro. 26(a)(2)(c));
see also Columbia Grain, Inc. v. Hinrichs Trading,
LLC, No. 3:14-CV-115-BLW, 2015 WL 6675538 at *2 (D.
Idaho Oct. 30, 2015); Century Indem. Co. v. Marine Grp.,
LLC, No. 3:08-CV-1375-AC, 2015 WL 5521986 at *3 (D. Or.
Sept. 16, 2015). “The proper function of rebuttal
evidence is to contradict, impeach or defuse the impact of
the evidence offered by an adverse party.” Bowman
v. Int'l Bus. Mach. Corp., No. 1:11-CV-0593-RLY-TAB,
2013 WL 1857192 at *7 (S.D. Ind. May 2, 2013) (quoting
Peals v. Terre Haute Police Dept., 535 F.3d 621, 630
(7th Cir.2008)). As a result, “[r]ebuttal reports
‘necessitate a showing of facts supporting the opposite
conclusion of those at which the opposing party's experts
arrived in their responsive reports.’” R
& O Const. Co. v. Rox Pro Int'l Grp., Ltd., No.
2:09-CV-01749-LRH-LR, 2011 WL 2923703, at *2 (D. Nev. July
18, 2011) (quoting Bone Care Int'l, LLC v. Pentech
Pharmaceuticals, Inc., 2010 WL 389444 (N.D. Ill. Sep.
“[r]ebuttal expert testimony is limited to ‘new
unforeseen facts brought out in the other side's
case.’” Columbia Grain, 2015 WL 6675538
at *2 (quoting Century Indem., 2015 WL 5521986 at
*3). “Rebuttal testimony cannot be used to advance new
arguments or new evidence, ” id. at *2, nor
are they the place to “set forth an alternate
theory.” R&O, 2011 WL 2923703 at *5.
“[S]imply because one method [to support an expert
opinion] fails, the other does not become
‘rebuttal.’” Id. (quoting
Morgan v. Commercial Union Assur. Cos., 606 F.2d at
555). In other words, “[a] rebuttal report is not the
time to change methodologies to account for noted
deficiencies; instead, it is to respond to criticisms of such
methodologies.” Bowman, 2013 WL 1857192 at *7.
that, without substantial justification, fails to disclose
information as required by Rule 26(a) by, for example,
exceeding the proper scope of rebuttal, may not “unless
such failure is harmless,  use as evidence at trial . . .
any witness or information not so disclosed.”
Fed.R.Civ.P. 37(c)(1). “The sanction is automatic
and mandatory unless the sanctioned party can show that
its violation . . . was either justified or harmless.”
R&O, 2011 WL 2923703 at *3 (citing Salgado
v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998))
seeks to strike fourteen of Mr. Stockton’s Rebuttal
Tabs and the opinions that relate to them for improperly
introducing new arguments, evidence, and/or theories.
Plaintiff responds that each challenged opinion directly
rebuts Dr. Woroch’s opinions. As a general matter, the
Court notes that although Plaintiff accurately states that
each of the contested tabs and related opinions is referenced
in the main body of the Rebuttal Report as responsive to Dr.
Woroch’s Report, the Court does not find such a general
statement sufficient. Therefore, the Court considers each
challenged opinion and its supporting analysis in turn to
determine whether each is, in fact, proper rebuttal.
Rebuttal Tab 3 and Related Opinions
first asks the Court to strike Rebuttal Tab 3 and related
opinions, asserting that Mr. Stockton defined “dealer
area” using drive time for the first time there, having
used a different definition in his Initial Report. Mot. at 7.
Plaintiff responds that Mr. Stockton refers to this
definition only to rebut an opinion offered by Dr. Woroch,
not to replace Mr. Stockton’s prior “containment
area” analysis. Opp. at 6. Plaintiff additionally
argues that Mr. Stockton first conducted and used the
drive-time analysis in his Initial Report.
reviewed Mr. Stockton’s deposition testimony and his
reports, the Court agrees with Plaintiff. While Defendant
asserts that Mr. Stockton admitted in his deposition that
this definition is new, this argument misconstrues Mr.
Stockton’s testimony. See Stockton Depo. at
623:24-625:17 (testifying “I don’t think
[defining dealer area based on drive time] is new, ”
“[c]ertainly the underlying data would be [in the
Initial Report”), ECF171-4. Furthermore, turning to the
reports themselves, the Court finds that this driver-time
based definition of “dealer area” is not new: Mr.
Stockton’s Initial Report included a tab comparing
“dealer area[s] based on drive time.”
See Stockton Tab 9 at 2, ECF 171-5. Rather,
Defendant’s argument appears to conflate two concepts
Mr. Stockton defined differently in his Initial Report:
“dealer area” and “containment area,
” see Stockton ¶ 23 &
Because Rebuttal Tab 3 does not offer new evidence or
analysis, it does not exceed the proper scope of rebuttal.
Accordingly, Defendant’s Motion to Strike Rebuttal Tab
3 and related opinions is DENIED.
Rebuttal Tab 6 and Related Opinions
Court next considers Defendant’s Motion to Strike
Rebuttal Tab 6, which presents a regression that Mr. Stockton
admitted during his deposition “was not in the original
report, ” see Stockton Depo at 578:18-20, but
is offered to rebut Dr. Woroch’s unequivocal conclusion
that car companies do not engage in intra-brand competition.
Opp. at 7.
Court agrees with Plaintiff that Mr. Stockton did not discuss
inter-brand competition in his Initial Report and Dr.
Woroch’s extreme position therefore reflected
“new unforeseen facts brought out in the other
side's case.” Columbia Grain, 2015 WL
6675538 at *2 (quoting Century Indem., 2015 WL
5521986 at *3). Therefore, Rebuttal Tab 6 and related
opinions are properly offered “to contradict, impeach
or defuse the impact of the evidence offered by an adverse
party.” See Bowman, 2013 WL 1857192 at *7.
Accordingly, the Court DENIES Defendant’s Motion to
Strike Rebuttal Tab 6 and related opinions.
Rebuttal Tab 7 and Related Opinions
next seeks to strike Rebuttal Tab 7 and related opinions
based on arguments that mirror those considered above for
Rebuttal Tab 6: Defendant notes that Mr. Stockton admits that
the analysis is “new . . . [and] didn’t go into
the affirmative report at all, ” see Stockton
Depo. at 611:24-612:1, while Plaintiff responds that Mr.
Stockton did not offer such analysis in his Initial Report
because he “did not anticipate . . . that Dr. Woroch
would question the entire concept of intra-brand
competition.” Opp. at 7. For the reasons stated above,
the Court finds that Rebuttal Tab 7 and related opinions fall
within the proper scope of rebuttal and Defendant’s
Motion to Strike Rebuttal Tab 7 and related opinions is
Rebuttal Tab 10 and Related Opinions
next asks the Court to strike Mr. Stockton’s but-for
objectives, which Defendant contends appear for the first
time in Rebuttal Tab 10 and related opinions. Mot. at 9.
Defendant notes that Dr. Woroch highlighted in his report
that “[n]either Stevens Creek nor Stockton [had]
perform[ed] th[e] exercise” of proposing but-for
objectives, see Woroch ¶ 36, and that Mr.
Stockton admitted that he “didn’t present
alternative objectives” in his Initial Report, Stockton
Depo. at 298:6-17. Plaintiff responds that Rebuttal Tab 10
does not offer “but for” objectives, but ...