Oracle Corporation et al v. SAP AG et al

Filing 1157

Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's 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, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)

EXHIBIT 14

Page 1

DONNA ABILA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
2:09-cv-01345-KJD-LRL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
2011 U.S. Dist. LEXIS 42944

April 14, 2011, Decided
April 14, 2011, Filed
SUBSEQUENT HISTORY: Motion denied by, Motion
granted by, Motion to strike granted by Abila v. United
States, 2011 U.S. Dist. LEXIS 87582 (D. Nev., Aug. 8,
2011)
COUNSEL: [*1] For Donna Abila, Plaintiff: Brett A
Carter, LEAD ATTORNEY, Benson, Bertoldo, Baker &
Carter, Las Vegas, NV.
For United States of America, Defendant: Blaine T
Welsh, LEAD ATTORNEY, U.S. Attorney's Office, Las
Vegas, NV; Holly A. Vance, LEAD ATTORNEY, U.S.
Attorney's Office, Reno, NV.
JUDGES: LAWRENCE R. LEAVITT,
STATES MAGISTRATE JUDGE.

UNITED

OPINION BY: LAWRENCE R. LEAVITT
OPINION

ORDER
Before the court is defendant's Motion to Strike
Supplemental Expert Witness Testimony of Witness
Terence Dinneen (#23). The court has considered the
motion, plaintiff's Opposition (#24) and Errata (#30), and
defendant's Reply (#26). Also before the court is
plaintiff's Motion to Strike Defendant's Experts Taylor
and Zimmer (#25), to which defendant filed an

Opposition (#27) and Errata (#29), and plaintiff filed a
Reply (#28).
Plaintiff filed this medical malpractice lawsuit on
July 24, 2009. Pursuant to the court's May 12, 2010,
Order (#13), plaintiff's expert disclosures were due by
July 12, 2010, and defendant's rebuttal expert disclosures
were due by August 12, 2010. The discovery cut-off date
was October 12, 2010. Plaintiff designated Terence
Dinneen as a Certified Rehabilitation Economist,
Rehabilitation Counselor, and Earnings [*2] Analyst,
and provided his expert's report on July 12, 2010. That
report reflected an analysis of plaintiff's pre-injury
earning capacity, past losses, and total future losses based
on her employment history as a housekeeper at the VA
Medical Center as of the date of her injury. On August
10, 2010, the court granted defendant's unopposed motion
to extend its expert disclosure deadline to September 30,
2010, and the discovery deadline to December 1, 2010.
Scheduling Order (#16). On October 5, 2010, defendant
disclosed Robert Taylor's report, which rebuts Dinneen's
vocationalist opinions. Defendant disclosed Paul
Zimmer's report on October 12, 2010, to rebut Dinneen's
economic opinions. On November 8, 2010, plaintiff
provided a rebuttal report from Dinneen addressing and
rebutting Taylor's and Zimmer's reports. On November
19, 2010, plaintiff filed her 17th Supplemental
Disclosure. Based on information in the supplemental
disclosure, Dinneen re-interviewed plaintiff to prepare
another report. Discovery closed on December 1, 2010.

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2011 U.S. Dist. LEXIS 42944, *2

On December 7, 2010, plaintiff provided defendant with
a Second Supplemental Report by Dinneen, dated
December 1, 2010 ("December 1 report"), in which
Dinneen [*3] evaluated plaintiff's alleged vocational
losses as an ultrasound technician -- a career path
plaintiff intended to pursue. See Exh. 4 to Mot. (#23). On
December 15, 2010, defendant filed its Motion to Strike
(#23) the December 1 report as untimely under Rule
37(c). On December 23, 2010, plaintiff filed her Motion
to Strike (#25) the untimely reports of Taylor and
Zimmer. The joint pre-trial order was due February 1,
2011. A settlement conference was held on February 23,
2011. No trial date has yet been set.
Discussion
Under Rule 37(c)(1), "[a] party that without
substantial justification fails to disclose information
required by Rule 26(a) . . . is not, unless such failure is
harmless, permitted to use as evidence at a trial, at a
hearing, or on a motion any witness or information not so
disclosed." This is an either/or standard; non-disclosure
must be either substantially justified or harmless to avoid
being excluded under the Rule. Galentine v. Holland
America Line-Westours, Inc., 333 F. Supp. 2d 991, 993
(W.D. Wash. 2004) (citing Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001))
(other citation omitted). "The sanction is automatic and
mandatory unless [*4] the sanctioned party can show
that its violation . . . was either justified or harmless."
Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th
Cir. 1998); see also Yeti by Molly, 259 F.3d at 1107.
The duty to supplement or correct disclosures
extends both to information included in an expert's report
and to information given during the expert's deposition.
Rule 26(e)(2). A party may not, however, use a
supplemental report to disclose information that should
have been disclosed in the initial expert report, thereby
circumventing the requirement for a timely and complete
expert witness report. 6 Moore's Federal Practice §
26.131. 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). Any
additions or other changes with regard to information
offered by an expert witness must be disclosed by the
time the party's pretrial disclosures are due under Rule
26(a)(3); that is, at least 30 days before trial, unless

otherwise directed by the court. See Id. Rule 37(c)(1)
gives teeth [*5] to these requirements by forbidding the
use at trial of any information required to be disclosed by
Rule 26(e) that is not properly disclosed.
Defendant's Motion (#23)
Defendant characterizes Dinneen's December 1
report as a "new" report, and therefore seeks an order
striking it as untimely. The court disagrees that it is a new
report. The court finds that it is merely a Rule 26(e)
supplement to Dinneen's original report of July 12, 2010.
As a supplement it is timely made. See Rule 26(a)(3). The
supplement is based on information not available to
Dinneen at the time of his initial report, see Keener, 181
F.R.D. at 640, and is pertinent to his analysis of plaintiff's
alleged vocational losses. Dinneen scheduled a follow-up
interview with plaintiff after receiving her 17th
Supplemental Disclosure on November 19, 2010. The
supplemental disclosure contained miscellaneous college
documentation including financial aid applications,
academic goal agreements, transcripts, and course listings
-- all disclosed to defendant. Defendant is therefore not
prejudiced by Dinneen's December 1 supplemental
report.
Plaintiff's Motion (#25)
Plaintiff moves to strike as untimely defendant's
experts, Paul Zimmer [*6] and Robert Taylor. Defendant
admits that it provided Zimmer's and Taylor's reports
after the September 30, 2010 deadline to do so. Defense
counsel represents, however, that on September 29, 2010,
he telephoned plaintiff's counsel, who agreed to allow
defendant to file Taylor's and Zimmer's reports a few
days late without seeking another extension from the
court. Counsel for defendant further recalls that on
October 1, 2010, he was in Minneapolis for a telephonic
deposition noticed by plaintiff's counsel, after which he
thanked plaintiff's counsel for the courtesy and indicated
he'd provide Taylor's report on October 5, 2010, and
Zimmer's report on October 11, 2010. Plaintiff's counsel
represents that he doesn't recall these conversations, and
that he did not agree to the extensions.
Whether or not counsel informally agreed to allow
defendant to submit the reports after the deadline does
not alter the outcome on the motion. Plaintiff is neither
harmed nor prejudiced by the late filed reports. See Rule
37(c)(1). Rather, plaintiff received the reports within the
discovery deadline, and her expert prepared a rebuttal to

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2011 U.S. Dist. LEXIS 42944, *6

both of defendant's experts' reports, which she filed on
November 8, [*7] 2010.
Accordingly, and for good cause shown,
IT IS ORDERED that defendant's Motion to Strike
Supplemental Expert Witness Testimony of Witness
Terence Dinneen (#23) is denied.
IT IS FURTHER ORDERED that plaintiff's Motion

to Strike Defendant's Experts Taylor and Zimmer (#25) is
denied.
DATED this 14th day of April, 2011.
/s/ Lawrence R. Leavitt
LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE