Total Rebuild, Inc. v. PHC Fluid Power L L C

Filing 359

RULING re 309 MOTION to Exclude Royston Report and Preclude John W Royston filed by P H C Fluid Power L L C. Signed by Judge Terry A Doughty on 9/6/2019. (crt,MiletelloSld, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
TOTAL REBUILD, INC.

CASE NO. 6:15-CV-1855

VERSUS

JUDGE TERRY A. DOUGHTY

PHC FLUID POWER, L.L.C.

MAG. JUDGE CAROL B.
WHITEHURST
RULING

This is a patent infringement case in which Plaintiff Total Rebuild (“Plaintiff”) contends
systems and/or methods utilized by or through Defendant PHC (“Defendant”) infringe claims of
United States Patent No. 8,146,428 (“the ’428 Patent”). The ’428 Patent is directed to systems
and methods for safely testing devices and components under high-pressure.
Pending before the Court is Defendant’s “Motion to Exclude the Royston Report and
Preclude the Testimony of John W. Royston” [Doc. No. 309]. Plaintiff responded to the motion.
[Doc. No. 334]. Defendant filed a reply. [Doc. No. 351].
For the following reasons, the motion is DENIED.
I.

PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff filed the original complaint alleging patent infringement on June 11, 2015. [Doc.

No. 1]. The case was originally assigned to Judge Richard Haik, and the First Scheduling Order
was entered on November 6, 2015. The First Scheduling Order required the parties to file Daubert
Motions by no later than 50 days before the pretrial conference, or 84 days before the jury trial.
[Doc. No. 26 at 2].1 The parties proceeded under the First Scheduling Order until it was vacated
on June 29, 2016. [Doc. No. 48]. The parties were then ordered to file a Joint Scheduling Order

Citations are to the filing’s number in the docket [Doc. No.] and pin cites are to the page numbers
assigned through ECF.
1

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within fourteen days (14) days. Id.
The parties filed a proposed Joint Scheduling Order on July 12, 2016 [Doc. No. 49], and
the Court entered it on July 14, 2016. [Doc. No. 50]. The Joint Scheduling Order only provided
dates through the end of Phase I discovery. Id. at 2. The parties addressed the remainder of the
schedule in their Rule 26(f) Report by stating that “following the Court’s determination on the
‘428 Patent’s claim construction, the Parties agree to meet and confer and propose a standard
Scheduling Order that will take the Parties through a jury trial.” [Doc. No. 51 at 6]. The parties
further stated that they anticipated the need for Phase II discovery. Id. at 8. The Court considered
the Rule 26(f) Report and determined it to be complete. [Doc. No. 52 at 1]. The case proceeded
under the Joint Scheduling Order, but a Markman hearing was never scheduled.
On July 23, 2018, over three years after the filing of the original complaint, the case was
reassigned to Judge Brian Jackson. [Doc. No. 147]. A status conference was held on August 22,
2018, and the Court set the Markman hearing and pretrial conference for November 28, 2018, with
the trial date set for January 22, 2019. [Doc. No. 149 at 1]. The Court further ordered the parties
to file a joint proposed scheduling order. Id. The parties failed to file a joint proposed scheduling
order, and instead filed separate proposed scheduling orders on September 4, 2018. [Doc. Nos.
150 and 151]. On September 17, 2018, Plaintiff moved to continue and reset the trial date to a
“later date.” [Doc. No. 152 at 1]. The Court denied Plaintiff’s motion to continue the trial date,
and ordered the parties to confer and come to an agreement on a proposed scheduling order. [Doc.
No. 161 at 5-6]. On October 22, 2018, the parties submitted a Proposed Amended Scheduling
Order. [Doc. No. 162]. The Court did not enter the Proposed Amended Scheduling Order.
On November 21, 2018, the Court canceled the Markman hearing and pretrial conference
set for November 28, 2018. [Doc. No. 146]. On November 30, 2018, Plaintiff proffered the report

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of John W. Royston (“the Royston Report”) in support for its claim for damages, which is the
report and testimony at issue in this motion. On December 10, 2018, the Court continued the
January 22, 2019 trial setting, and set the Markman hearing and pretrial conference for January
22, 2019. [Doc. No. 175 at 1]. On January 15, 2019, the Court reset the Markman hearing for
March 29, 2019, with a preliminary pretrial conference to follow. [Doc. No. 213 at 1]. Plaintiff’s
counsel contacted the Court on the afternoon of March 28, 2019 stating that they were unprepared
to proceed with the Markman hearing. [Doc. No. 264 at 1]. Plaintiff’s counsel expressed a belief
that no Markman hearing would be held because, according to counsel, the parties agreed to stand
on their claim-construction briefs. Id. The Court order the parties to file a joint stipulation
confirming that they agreed to stand on their briefs. Id. at 3. The Court set the pretrial conference
for June 11, 2019, and the trial date for July 22, 2019. Id. On April 4, 2019, the parties stipulated
to submitting the pending claim construction by the Court on the briefs. [Doc. No. 265 at 1-3].
On April 18, 2019, almost four years after the filing of the original complaint, the case was
reassigned to the undersigned. [Doc. No. 266]. On April 19, 2019, Defendant moved the Court to
reschedule the trial date. [Doc. No. 268 at 1]. In its motion, Defendant argued that “PHC and its
counsel recognize this case has been pending for several years. PHC has been ready to take this
case to trial as far back as November 2018 . . .” [Doc. No. 268 at 1]2. The Court granted
Defendant’s motion and directed the parties to contact the Court with reference to rescheduling
the trial date in September 2019. [Doc. No. 270]. On May 1, 2019, the Court entered the
Abbreviated Scheduling Order, which set the deadline for filing all motions in limine to no later
than July 26, 2019. [Doc. No. 275 at 4]. The Court then entered its Opinion and Ruling on claim

2

The Court notes that Plaintiff proffered the Royston Report in support for its claim for damages
on November 30, 2018, the same month that Defendant indicated that they were prepared to take
the case to trial.
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construction on June 10, 2019. [Doc. Nos. 279, 280]. The Court further entered Rulings and
Orders on the motions in limine filed by Defendant on January 8, 2019 and January 11, 2019 (“the
first round of motions in limine”). 3 [Doc. Nos. 280, 281, 282, 283, 284, 285].
In conformance with the Abbreviated Scheduling Order, Defendant filed a number of
motions in limine on July 26, 2019 (“the second round of motions in limine”). [Doc. Nos. 287,
290, 293, 295, 296]. However, Defendant waited until August 19, 2019, on the eve of trial, to file
the instant motion. [Doc. No. 309]. For the reasons stated below, the Court determines that the
Daubert motion is untimely and must be denied.
II.

LAW AND ANALYSIS
“The [Federal] Rules of Civil Procedure endow the trial judge with formidable case-

management authority.” Hernandez v. General Motors Corp., No. C-00-332, 2001 U.S. Dist.
LEXIS 26264, at *4 (S.D. Tex. July 3, 2001). This authority includes drafting a case-management
schedule that the district court enters as an order. See id. It is well established that “a party who
ignores any case-management deadline does so at his own peril.” Id.

More specifically,

“challenges to expert testimony may be waived for failure to adhere to deadlines” set forth in a
scheduling order. Id.; see also, Queen Trucking, Inc. v. GMC, Civil Action No. 1:06-CV-052-C
ECF, 2007 U.S. Dist. LEXIS 95082, at *6 (N.D. Tex. June 8, 2007); Vienne v. Am. Honda Motor
Co., Civil Action No. 99-3716 Section “N”, 2001 U.S. Dist. LEXIS 1301, at *5 (E.D. La. Jan. 26,
2001). Based on this line of cases and further considering Defendant’s explanation for missing
the motion in limine deadline, the Court will not entertain Defendant’s untimely Daubert
challenge. See e.g., Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1289-90 (10th Cir. 2000)

Interestingly, Defendant moved to exclude the testimony of Plaintiff’s infringement expert, Mr.
Blaine LeFleur, on January 8, 2019, but did not move to exclude the Royston Report. Instead,
Defendant waited until seven months later, on August 19, 2019, to file the instant motion.
3

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(“A party may waive the right to object to evidence on Kumho/Daubert grounds by failing to make
its objection in a timely manner.”).
The Abbreviated Scheduling Order set July 26, 2019, as the deadline for filing Motions in
Limine. This was the last day that the motion to exclude could have been filed. However, given
the procedural history of this case, the motion should have been filed well before this date. The
First Scheduling Order required the parties to file Daubert motions at least 84 days before the jury
trial. [Doc. No. 26 at 2]. This placed the parties on notice that Daubert motions should not be filed
on the eve of trial, because these motions require time for proper evaluation. See, e.g., FelicianoHill v. Principi, 439 F.3d 18, 24 (1st Cir. 2006) (“Parties have an obligation to object to an expert’s
testimony in a timely fashion, so that the expert’s proposed testimony can be evaluated with
care.”). As discussed above, this case has labored on for more than four years, and the Court will
not delay it any further because of an untimely motion.
The Court further finds that the filing of the motion is not only untimely, but it also appears
to be an attempted procedural “gotcha” by Defendant. See, e.g., Alfred v. Caterpillar, Inc., 262
F.3d 1083, 1087 (10th Cir. 2001) (“[B]ecause Daubert generally contemplates a ‘gatekeeping’
function, not a ‘gotcha’ [f]unction [our caselaw] permits a district court to reject as untimely
Daubert motions raised late in the trial process; only in rare circumstances will such tardy motions
. . . be warranted.”). Defendant confirmed that it received the Royston Report on November 30,
2018. [Doc. No. 309 at 5]. Although it was not required to depose or subpoena documents that
Plaintiff’s expert witness relied upon, Defendant provides no reasonable explanation for its
statement that it was “unable to depose Total about the documents.” Id. at 10. If Defendant was
truly concerned about making “a competent rebuttal argument at trial,” then it would have deposed
the expert to test the numbers and methodology included in his report. Id.

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In summary, the Court finds Defendant’s argument suspect and its actions inexcusable
given that it had the Royston Report for 262 days before it filed the instant motion. Especially
given the lengthy procedural history and the number of times the trial date was continued in this
case. Moreover, Defendant fails to explain why it moved to exclude the testimony of Plaintiff’s
infringement expert on January 8, 2019, but did not move to exclude the Royston Report on or
near that same date. Accordingly, the Court finds that the importance of Mr. Royston’s testimony
far outweighs any prejudice Defendant may incur as a result of its own inaction. See, e.g., Sierra
Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 572 (5th Cir. 1996).4
Defendant’s only response to the untimely filing is that “Section 5(d) of the Abbreviated
Scheduling Order provides that the deadline for parties to file pretrial memoranda regarding
outstanding discovery issues is August 19, 2019.” [Doc. No. 351 at 1].5

Defendant’s

understanding of this deadline would make the other deadlines in the Abbreviated Scheduling
Order superfluous. The purpose of Section 5(d) is to prepare the case for trial and identify any
outstanding issues, not derail the trial date with motions that should and could have been filed well
before the eve of trial.
This is not to say that the Court is abandoning its “gatekeeper” function. Daubert provides
that “in the event [this Court] concludes that the scintilla of evidence supporting a position is
insufficient to allow a reasonable juror to conclude that the position is more likely than not is true,

4

When exercising its discretion on whether to exclude the evidence, the Court considers:
(1) the importance of the witnesses’ testimony;
(2) the prejudice to the opposing party of allowing the witnesses to testify;
(3) the possibility of curing such prejudice by granting a continuance; and
(4) the explanation, if any, for the party’s failure to comply with the discovery order.
5
Plaintiff notes that Defendant largely repeats a number of arguments in this motion that it made
in its Motion in Limine to Preclude and Exclude any Testimony or Evidence Related to Total
Rebuild’s Profits and Expenses. [Doc No. 334 at 2] (citing Doc. No. 295). The Court will address
these arguments in its ruling on Defendant’s prior motion [Doc. No. 295].
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the Court remains free to direct a judgment, . . .” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596, 113 S. Ct. 2786, 2798 (1993). Notwithstanding, the Court has reviewed the arguments
made by Defendant and finds nothing so glaring as to require the Court to exclude the evidence
even in the face of Defendant’s delay. Rather, the issues are better resolved through crossexamination.

As Daubert itself recognized, “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Exclude the Royston Report and

Preclude the Testimony of John W. Royston [Doc. No. 309] is DENIED.
Monroe, Louisiana, this 6th day of September, 2019.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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