Electrolux Home Prod v. Whitesell Corp

Filing 1254

ORDER denying 1244 Motion to Enforce Scheduling Order and Orders that all rebuttal experts be made available for deposition by October 15, 2019. Signed by Chief Judge J. Randal Hall on 08/26/2019. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WHITESELL CORPORATION,

Plaintiff,

*
*

V.

*

CV 103-050

ELECTROLUX HOME PRODUCTS, INC.,

HUSQVARNA, A.B., and HUSQVARNA
OUTDOOR PRODUCTS, INC.,
5

Defendants.

ORDER

On March 15, 2019, this Court adopted a jointly submitted
Scheduling Order governing the balance of the case through trial
proceedings.

(See Doc. No. 1171, Ex. A.)

Pertinent here, all

parties were to submit their affirmative expert reports by April
15, 2019.

Any rebuttal expert reports were due by July 1, 2019,

later extended to July 15^^.

The Scheduling Order then provides

the following deadlines:
Plaintiff shall make its disclosed testifying expert(s)
available for deposition on or before August 15, 2019.
Defendants
shall
make
their
disclosed
expert(s)
available
for
deposition
on
September 16, 2019.

testifying
or
before

(Id.)

In accordance with the April 15*^^ deadline. Plaintiff served
the

expert

reports of two

witnesses

and

Defendants

served

the

expert reports of five witnesses.
deadline,

Defendant

Plaintiff

served

Whitesell.

Husqvarna

one

In accordance with the July 15^^

served

rebuttal

one

report,

rebuttal

that

of

report

Mr.

Neil

and
L.

In accordance with the August 15^^^ deadline. Defendants

have taken the deposition of Plaintiff's expert, Peter Karutz.^
The depositions of the five defense experts have been scheduled to

take place on September 10, 12, 13, 24 and 25^^.
On August 2, 2019, prior to the August 15^^ deadline for taking
the depositions of Plaintiff's disclosed experts, Defendants filed
a

motion

to

enforce

the

Scheduling

Order.

In

particular.

Defendants sought a court order directing Plaintiff to produce Mr.

Neil L. Whitesell prior to August 15^^.
the motion, arguing that Mr.

Defendants have opposed

Whitesell, a

rebuttal expert, by

definition should only be made available after the defense experts
are deposed, i.e., after September 25, 2019.
Mr.

Whitesell

for

deposition

on

Plaintiff has offered

October

15,

2019.

Not

coincidentally, October 16 through November 15, 2019, is the period

of time in which all parties must file any Daubert motions and
summary judgment motions based on Daubert or damages issues.^

^
Defendants represented in a prior court filing that they did
not anticipate deposing Plaintiff's other expert.

2
The Scheduling Order provides that the period of time in which
all parties must file summary judgment motions on liability issues
is September 16 through October 15, 2019.

Upon consideration, the Court concludes that Plaintiff has
the better argument.

While it is true that the Scheduling Order

provides that Plaintiff shall make its disclosed experts without
distinction available by August

Defendants' insistence in

fitting Mr. Whitesell into this category ignores the reality that
he is a rebuttal expert.

As such. Plaintiff cannot be expected to

produce this witness prior to the production of all evidence he is
intended to rebut, i.e., the defense experts' testimony.
Upon

the

foregoing,

the

Court

hereby

DENIES

Defendant's

motion to enforce Scheduling Order (doc. no. 1244) and ORDERS that
all rebuttal experts be made available for deposition by October
15, 2019.
the

Should this ruling necessitate an extension of either

liability

summary

judgment

motion

deadline

or

the

Daubert/damages summary judgment motion deadline, an appropriate
motion may be filed.
ORDER ENTERED at Augusta, Georgia, this

day of August,

2019.

J. RANDj^HALL,^ CHIEF JUDGE

UNITE^STATES DISTRICT COURT
[ERN DISTRICT OF GEORGIA