Oracle Corporation et al v. SAP AG et al

Filing 1143

Declaration of Tharan Gregory Lanier in Support of 1142 MOTION in Limine Defendants' Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Related document(s) 1142 ) (Froyd, Jane) (Filed on 4/26/2012)

EXHIBIT 19

Page 1
323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.)))

pealed.
This case was not selected for publication in the
Federal Reporter.
Not for Publication in West's Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally
governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Ninth Circuit Rule 36-3.
(Find CTA9 Rule 36-3)
United States Court of Appeals,
Ninth Circuit.
Teresa L. LUKE, individually and on behalf of
their marital community and as Guardian ad Litem
for her minor children; Andrew R. Luke, individually and on behalf of their marital community; Hayden R. Luke; Riley A. Luke, Plaintiffs-Appellants,
v.
FAMILY CARE AND URGENT MEDICAL
CLINICS, a Corporation of Washington State;
Robert D. Thornton; Howard Bruce Goodwin Pa-C;
Family Urgency Care Clinics Minnehaha; Emergency Rooms, PS; Jerry J. Fisher, Defendants-Appellees.
No. 08-35192.
Argued and Submitted Jan. 22, 2009.
Filed March 30, 2009.
Background: Patient and patient's husband, along
with their minor children, brought medical negligence action against, among others, physician's assistant, his supervising physicians, and the medical
clinic at which they all worked, arising from patient's prescribed use of alcohol treatment drug and
resulting liver damage. After having its decision,
2005 WL 3533616, granting defendants' motion for
summary judgment affirmed in part, vacated in
part, and remanded, 246 Fed.Appx. 421, the United
States District Court for the Western District of
Washington, Franklin D. Burgess, J., 2008 WL
410672, granted defendants' motion to strike supplemental expert witness declarations and defendants' motion for summary judgment. Plaintiffs ap-

Holdings: The Court of Appeals held that:
(1) district court did not abuse its discretion in excluding as untimely expert declarations submitted
by plaintiffs;
(2) plaintiffs established prima facie case supporting breach of the requisite standard of care;
(3) plaintiffs failed to establish prima facie case of
causation; and
(4) untimely expert declarations were not admissible under rule requiring supplementation of witness disclosures.
Affirmed.
M. Smith, Circuit Judge, filed a dissenting
opinion.
West Headnotes
[1] Federal Civil Procedure 170A

1278

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(A) In General
170Ak1278 k. Failure to Respond; Sanctions. Most Cited Cases
District court did not abuse its discretion in excluding as untimely expert declarations submitted
by plaintiffs, who were bringing medical negligence action, in response to clinic defendants' summary judgment motion, where the plaintiffs disclosed the declarations more than three months
after the district court's deadline for initial expert
disclosures, and more than two months after the
deadline for rebuttal disclosures, and the declarations, which were filed only four days before the
close of discovery and ten weeks before trial,
presented a new theory as to a key element of
plaintiffs' medical negligence claim. Fed.Rules
Civ.Proc.Rule 26(a)(2)(C), 28 U.S.C.A.
[2] Federal Civil Procedure 170A

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

2515

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323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.))
(Not Selected for publication in the Federal Reporter)
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170A Federal Civil Procedure
170AXVII Judgment
170AXVII(C) Summary Judgment
170AXVII(C)2 Particular Cases
170Ak2515 k. Tort Cases in General.
Most Cited Cases
Patient, and her family, moving for summary
judgment in their medical negligence action against
clinic defendants arising from patient's prescribed
use of alcohol treatment drug and resulting liver
damage, established prima facie case supporting
breach of the requisite standard of care through
their initial expert witness reports, which showed
that, in order to ensure that patient did not suffer an
adverse reaction to alcohol treatment drug, physician's assistant should have ordered baseline liver
function tests when he first saw patient, and also
should have ordered follow-up liver function tests
between two and four weeks later.
[3] Federal Civil Procedure 170A

2515

170A Federal Civil Procedure
170AXVII Judgment
170AXVII(C) Summary Judgment
170AXVII(C)2 Particular Cases
170Ak2515 k. Tort Cases in General.
Most Cited Cases
Initial expert witness disclosures of patient and
her family, moving for summary judgment in their
medical negligence action against clinic defendants
arising from patient's prescribed use of alcohol
treatment drug and resulting liver damage, created
an ambiguity as to whether baseline liver function
testing performed prior to the last day of specified
two to four week window after patient first ingested
the drug would have revealed abnormally elevated
results in patient's liver function studies, and therefore expert witness disclosures did not establish,
prima facie, that clinic defendants' failure to order
the testing caused patient's liver damage, as the experts opined that an adverse reaction would have
first been detectable at some point “within” two to
four weeks, which left open the possibility, for example, that no abnormality would have been detec-

ted by a liver function test performed three weeks
after patient first ingested the drug.
[4] Federal Civil Procedure 170A

1278

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(A) In General
170Ak1278 k. Failure to Respond; Sanctions. Most Cited Cases
Untimely expert declarations submitted by
plaintiffs, who were bringing medical negligence
action, in response to clinic defendants' summary
judgment motion, were not admissible under rule
requiring supplementation of witness disclosures
based on a party learning the disclosure was incomplete or incorrect; declarations asserted a new theory of causation, which did not correct an inaccuracy in plaintiffs' original disclosures, or fill in a gap
based on information previously unavailable, but
instead attempted to fix weakness, identified by the
defendants in their summary judgment motion, in
plaintiffs' ability to establish causation. Fed.Rules
Civ.Proc.Rule 26(e), 28 U.S.C.A.
*498 Christopher Otorowski, Esquire, Susan Carol
Eggers, Esquire, Otorowski Johnston Diamond &
Golden PLLC, Bainbridge Island, WA, for
Plaintiffs-Appellants.
Michael D. Hoffman, Esquire, Janet M. Schroer,
Hoffman Hart & Wagner, LLP, Portland, OR, for
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No.
3:04-cv-05759-FDB.
FN*
Before: REAVLEY,
Senior Circuit Judge, and
TALLMAN and M. SMITH, Circuit Judges.
FN* The Honorable Thomas M. Reavley,
Senior United States Circuit Judge for the
Fifth Circuit, sitting by designation.

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323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.))
(Not Selected for publication in the Federal Reporter)
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MEMORANDUM

FN**

FN** This disposition is not appropriate
for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
**1 Teresa Luke (“Luke”), Andrew Luke, and
their minor children (collectively, “Plaintiffs”) appeal the district court's rulings in favor of physician's assistant H. Bruce Goodwin (“Goodwin”),
his supervising physicians, and the medical clinic at
which they all worked (collectively, the “Clinic Defendants”). The district court excluded as untimely
expert declarations submitted by Plaintiffs in response to the Clinic Defendants' motion for summary judgment. Concluding that Plaintiffs' remaining expert disclosures failed to create a genuine issue of material fact regarding causation, the district
court then granted summary judgment in favor of
the Clinic Defendants. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
I
We previously remanded this case to the district court to determine the admissibility of the expert declarations submitted by Plaintiffs in response
to the Clinic Defendants' summary judgment motion. On remand, the district court granted the Clinic Defendants' motion to strike the declarations. We
review the imposition of discovery sanctions for abuse of discretion, “giv[ing] particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1).” Yeti by Molly Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1105-06
(9th Cir.2001).
A party must submit its expert witness disclosures “at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(C). “Rule 37(c)(1)
gives teeth to th[is] requirement[ ]” by automatically excluding any evidence not properly disclosed
under Rule 26(a). Yeti, 259 F.3d at 1106. Moreover,
where a discovery sanction is properly entered,
Rule 37(b)(2)(A)(ii) provides that a court may
“prohibit[ ] the disobedient party from supporting
or opposing designated claims or defenses, or from

introducing designated matters in evidence.” Nonetheless, exclusion of evidence under Rule 37(c)(1)
is not appropriate if the failure to disclose was
either substantially justified or harmless. Yeti, 259
F.3d at 1106.
[1] The district court did not abuse its discretion in excluding as untimely the expert declarations submitted by Plaintiffs in response to the
Clinic Defendants' *499 summary judgment motion. Plaintiffs disclosed these declarations more
than three months after the district court's deadline
for initial expert disclosures, and more than two
months after the deadline for rebuttal disclosures.
Accordingly, these declarations were not timely under Rule 26(a)(2)(C). As Plaintiffs provided no justification-let alone substantial justification-for the
untimely submission, this exception to Rule
37(c)(1) automatic exclusion is inapplicable. Nor
did Plaintiffs satisfy their burden of proving harmlessness. See Yeti, 259 F.3d at 1107. Not only were
the disputed declarations filed only four days before the close of discovery and ten weeks before trial, but, as explained infra, they presented a new
theory as to a key element of Plaintiffs' medical
negligence claim. They were properly excluded.
II
**2 To overcome the Clinic Defendants' motion for summary judgment, Plaintiffs had to establish through admissible evidence that, pursuant to
Washington Revised Code § 7.70.040, a genuine issue of material fact existed for each of the two elements of their medical negligence claim: (1) that
the Clinic Defendants “failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in
the profession or class to which he belongs, in the
state of Washington, acting in the same or similar
circumstances”; and (2) that the Clinic Defendants'
failure to exercise this degree of care “was a proximate cause of Luke's liver failure. We review de
novo a district court's grant of” summary judgment.
United States v. City of Tacoma, 332 F.3d 574, 578
(9th Cir.2003).

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323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.))
(Not Selected for publication in the Federal Reporter)
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[2] As to the first element, the Plaintiffs' initial
expert witness reports, whose admissibility is not
challenged, establish a prima facie case supporting
breach of the requisite standard of care by the Clinic Defendants. According to these reports, in order
to ensure that his patient did not suffer an adverse
reaction to Antabuse, Goodwin should have ordered
baseline liver function tests when he first saw Luke
on March 12, 2002, and he should also have
ordered follow-up liver function tests between two
and four weeks later. Unfortunately, Goodwin did
neither.
[3] Plaintiffs failed, however, to establish a
genuine issue of material fact regarding causation.
The initial expert reports stated that had “Goodwin
obtained a follow-up liver function study within
two to four weeks after prescribing Antabuse, more
likely than not Teresa Luke's liver function studies
would have been abnormally elevated.” Because
the experts opined that an adverse reaction would
first be detectable at some point “within” two to
four weeks, their disclosures create an ambiguity as
to whether testing performed prior to the last day of
the specified window would have revealed abnormally elevated results. For example, the statement
leaves open the possibility that no abnormality
would have been detected by a liver function test
performed three weeks after Luke first ingested
Antabuse. Only after the summary judgment motion
had been filed did Plaintiffs' experts state that the
abnormality would have presented itself ten days
after Luke started on Antabuse. Accordingly, the
district court did not err in entering summary judgment against Plaintiffs on the issue of causation.
III
Plaintiffs nonetheless argue that the district
court should have admitted the untimely expert declarations pursuant to Federal Rule of Civil Procedure 26(e), which requires supplementation of an initial*500 expert disclosure “if the party learns that
in some material respect the disclosure ... is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to

the other parties during the discovery process or in
writing.” But Rule 26(e) creates a “duty to supplement,” not a right. Nor does Rule 26(e) create a
loophole through which a party who submits partial
expert witness disclosures, or who wishes to revise
her disclosures in light of her opponent's challenges
to the analysis and conclusions therein, can add to
them to her advantage after the court's deadline for
doing so has passed. Rather, “[s]upplementation
under the Rules means correcting inaccuracies, or
filling the interstices of an incomplete report based
on information that was not available at the time of
the initial disclosure.” Keener v. United States, 181
F.R.D. 639, 640 (D.Mont.1998).
**3 [4] The district court did not err in concluding that the Plaintiffs' untimely expert declarations were not admissible under Rule 26(e). These
new declarations asserted a new theory of causation: “more likely than not, that had [liver function
tests] been obtained at anytime beginning 10 days
after initiating Antabuse ..., the [liver function
tests] would have been abnormally elevated.” This
new theory did not correct an inaccuracy in the
Plaintiffs' original disclosures, nor did it fill in a
gap based on information previously unavailable to
the Plaintiffs. By offering this new theory advancing an earlier date on which liver function abnormality would have been revealed, the untimely declarations instead impermissibly attempted to fix
the weakness, identified by the Clinic Defendants
in their summary judgment motion, in Luke's ability to establish causation.
IV
The district court did not abuse its discretion in
excluding Plaintiffs' untimely expert declarations
and properly entered summary judgment in favor of
the Clinic Defendants for failing to establish a
prima facie case of causation.
AFFIRMED.
M. SMITH, Circuit Judge, dissenting:
I respectfully dissent.

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323 Fed.Appx. 496, 2009 WL 886350 (C.A.9 (Wash.))
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The law is well established that, in reviewing a
motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986) (“The evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”); Agosto v.
Immigration & Naturalization Serv., 436 U.S. 748,
773 n. 10, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978)
(Powell, J., dissenting) (viewing the facts in the
light most favorable to the non-moving party means
that the party opposing the summary judgment is to
be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists); see also Hunt v. Cromartie, 526 U.S. 541,
552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999)
(same).

drawn without consulting the untimely expert declarations excluded by the district court.
**4 Accordingly, summary judgment is inappropriate even in light of our decision that the untimely expert declarations were properly excluded.
I would therefore reverse the district court's ruling
and remand for trial.
C.A.9 (Wash.),2009.
Luke v. Family Care and Urgent Medical Clinics
323 Fed.Appx. 496, 2009 WL 886350 (C.A.9
(Wash.))
END OF DOCUMENT

Under this standard, I believe the court is obligated to interpret the evidence presented as proof
that the defendant's failure to perform liver tests
two to four weeks after Luke began taking Antabuse was the proximate cause of her liver failure.
Luke's initial expert testimony, submitted into evidence far in advance of the discovery deadline, indicated that she would more probably than not have
shown abnormal liver functions two to four weeks
after she began taking the drug, which, we must
reasonably infer, would more probably than not
have been manifest in the tests that should have
been given during that time period of two to four
weeks.
The majority's conclusion that summary judgment is appropriate because the statement*501
presented by the experts “leaves open the possibility that no abnormality would have been detected”
is erroneous as a matter of law, because it fails to
give the non-moving party the benefit of all reasonable doubts and inferences. It is reasonable to infer
that a test given two to four weeks after a certain
date will reflect the abnormalities experts have testified will manifest themselves within that same two
to four week time period. This inference can be

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.