Obesity Research Institute, LLC v. Fiber Research International, LLC et al

Filing 411

ORDER denying 385 Plaintiff's MOTION to Strike the Expert Report of Richard Hoffman and Preclude His Testimony at Trial. Signed by Magistrate Judge Mitchell D. Dembin on 9/19/17. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 OBESITY RESEARCH INSTITUTE, LLC, Case No. 15-cv-0595-BAS-MDD Plaintiff, v. FIBER RESEARCH INTERNATIONAL, LLC, 16 Defendant. ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S REBUTTAL EXPERT REPORT OF RICHARD HOFFMAN [ECF NO. 385] 17 18 Before the Court is Plaintiff’s Motion to Strike the Expert Report of 19 Richard Hoffman and Preclude his Testimony at Trial filed on August 18, 20 2017. (ECF No. 385). Defendant responded in opposition on September 8, 21 2017. (ECF No. 401). Plaintiff filed a reply on September 15, 2017. (ECF 22 No. 409). 23 There is a long and sordid history of unnecessary discovery litigation in 24 this case. (See ECF No. 271 at 8-10). This motion adds another page to the 25 chapter. 26 It starts with Plaintiff ORI’s decision to have its damages expert, Neil J. 1 15-cv-0595-BAS-MDD 1 Beaton, express no opinion whatsoever in his initial expert report. (See ECF 2 No. 81). Despite the fact that Defendant FRI was seeking disgorgement of 3 ORI’s profits as its measure of damages, ORI had Mr. Beaton opine that he 4 could not provide an opinion about damages without financial records of FRI. 5 (Id.). FRI served the report of its rebuttal expert, Richard Hoffman, in which 6 he similarly expressed no opinion, as there was nothing to rebut, but added 7 his view of the methodology he would have used to determine damages. (Id.). 8 ORI moved to strike the Hoffman rebuttal report as not a proper rebuttal to 9 the non-opinions expressed by their expert. (ECF No. 80). The Court did 10 strike Mr. Hoffman’s report to the extent that addressed his hypothetical 11 methodology as it was not in response to anything in the Beaton report. 12 (ECF No. 81). 13 Then, ORI served the supplemental report of Mr. Beaton, FRI served 14 the supplemental rebuttal report of Mr. Hoffman and FRI moved to strike 15 certain opinions of Mr. Beaton as improper supplementation. (ECF No. 177). 16 The Court granted FRI’s motion in its entirety, striking all but two opinions 17 expressed by Mr. Beaton in his supplemental report. (ECF No. 271). This 18 Court’s Order was affirmed by the district court on August 4, 2017. (ECF No. 19 381). 20 ORI now claims that the supplemental expert report of Mr. Hoffman 21 should be stricken and Mr. Hoffman be precluded from testifying. (ECF No. 22 385). ORI asserts that because Mr. Hoffman was responding to opinions 23 expressed by Mr. Beaton in his supplemental expert report, and all but two of 24 Mr. Beaton’s opinions have been struck, that Mr. Hoffman’s rebuttal to Mr. 25 Beaton’s stricken opinions also must be struck. (Id.). 26 The absurdity of ORI’s position should be obvious. Mr. Hoffman 2 15-cv-0595-BAS-MDD 1 properly responded to opinions expressed by Mr. Beaton. See Rules 2 26(a)(2)(B) and (D)(ii), Fed. R. Civ. P. The fact that certain of the opinions 3 expressed by Mr. Beaton later were struck does not make the Hoffman 4 supplemental report improper. It was a proper rebuttal report. Moreover, 5 two of Mr. Beaton's opinions were not struck. ORI’s assertion that Mr. 6 Hoffman’s report only addressed the stricken opinions of Mr. Beaton is not 7 persuasive. The Court has read both reports and disagrees. And, even if 8 correct, it would not be a basis to strike a report which was proper rebuttal 9 when filed. Plaintiff’s motion is DENIED. 10 To the extent that ORI decides to and is permitted to call Mr. Beaton as 11 an expert witness and the district court allows Mr. Beaton to offer his 12 surviving opinions, FRI may seek to call Mr. Hoffman to rebut those opinions, 13 as expressed in Mr. Hoffman’s supplemental rebuttal expert report. 14 15 16 17 18 CONCLUSION Plaintiff’s motion to strike the supplemental rebuttal expert report of Richard Hoffman is DENIED. IT IS SO ORDERED. Dated: September 19, 2017 19 20 21 22 23 24 25 26 3 15-cv-0595-BAS-MDD

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