Laryngeal Mask Company Ltd. et al v. AMBU A/S et al

Filing 495

ORDER denying without prejudice 365 Motion to Exclude expert testimony of Nikolaus Gravenstein, Samsun Lampotang, Michael Mazis, Ryan Sullivan and J. Michael Thesz. Signed by Magistrate Judge Nita L. Stormes on 10/29/09. (All non-registered users served via U.S. Mail Service)(lao) Modified text on 10/30/2009 to reflect Magistrate Judge (lao). (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) Plaintiffs, ) v. ) AMBU A/S, AMBU INC., AMBU LTD., and ) ) AMBU SDN. BHD, ) ) Defendants. ) THE LARYNGEAL MASK COMPANY LTD. and LMA NORTH AMERICA, INC., Civil No.07cv1988-DMS (NLS) ORDER DENYING WITHOUT PREJUDICE MOTION TO EXCLUDE EXPERT TESTIMONY OF NIKOLAUS GRAVENSTEIN, SAMSUN LAMPOTANG, MICHAEL MAZIS, RYAN SULLIVAN AND J. MICHAEL THESZ [Docket No 365 ]

On October 15, 2007, Plaintiffs The Laryngeal Mask Company Ltd. and LMA North America, Inc. (collectively, "LMA") commenced this patent infringement suit against Defendants Ambu A/S, Ambu Inc. and Ambu Ltd. (collectively, "Ambu"). [Doc. No. 1]. On August 25, 2008, Ambu filed an Amended Answer and Counterclaims, asserting counterclaims based on the allegation that LMA used a brochure that falsely asserted that Ambu's mask can cause nerve injury. [Docket No. 72.] On September 1, 2009, LMA filed a motion to exclude the testimony of the following Ambu expert witnesses: Nikolaus Gravenstein, Samsun Lampotang, Michael Mazis, Ryan Sullivan and J. Michael Thesz. The motion is based on the alleged spoliation of all draft expert reports. Ambu opposed the motion, arguing: 1) that no draft reports were destroyed, the working documents were simply overwritten as changes were made; 2) draft reports are not required to be produced under Rule 26; 3) draft reports are covered by the work product immunity; 4) LMA used the same process for the production of expert reports; and 5) LMA has not been prejudiced. 1

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On September 25, 2009, the presiding judge granted LMA's renewed Motion for Entry of Judgment and to Stay the Counterclaims pending appeal. [Docket No. 476.] On October 6, 2009, the presiding judge entered Judgment on the patent claims and Ordered that the proceeding be stayed as to the counterclaims. [Docket nos. 484, 485.] After the resolution of the appeal, the parties are to contact the court, at which time the Court will consider lifting the stay and setting a new trial date. Because the law1 and issues involved in this motion may be substantially different if and when the new trial date is set, and in the interests of judicial economy, It Is Hereby Ordered that the Motion to Exclude Expert Testimony is DENIED WITHOUT PREJUDICE. IT IS SO ORDERED.

DATED: October 29, 2009

Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

An Amendment to Rule 26 of the Federal Rules of Civil is pending on the topic of whether draft expert reports are covered by the work product immunity. See http://www.uscourts.gov/rules/Reports/Combined_ST_Report_Sept_2009.pdf. The split in authority on this issue, and the pending amendment, argue strongly against exclusionary sanctions for any failure to maintain draft expert reports. 2
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