Baskim Holdings, Inc. v. Two M, Inc.

Filing 167

ORDER. IT IS ORDERED that 130 , 140 the plaintiff's motion in limine is granted. The testimony and reports of defendants' expert Thomas Carroll, Ph.D. are excluded from trial. Signed by Judge Andrew P. Gordon on 6/8/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BASKIM HOLDINGS, INC.,

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Plaintiff,
v.
TWO M, INC. and OMAR ALDABBAGH,
Defendants.

Case No. 2:16-cv-01898-APG-GWF
ORDER GRANTING MOTION IN
LIMINE REGARDING DEFENDANTS’
EXPERT CARROLL
(ECF Nos. 130, 140)

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I grant Plaintiff Baskim Holdings, Inc.’s motion in limine to exclude the testimony and

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reports of the defendants’ expert Thomas Carroll, Ph.D. ECF Nos. 130, 140. First, the defendants

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fail to explain why Dr. Carroll submitted two supplemental reports after the disclosure deadline.

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The defendants correctly point out that Federal Rule of Civil Procedure 26(e)(2) imposes a duty

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to supplement an expert’s report. But that duty does not give them the right to update the report

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after the deadline with information and opinions that were available before the deadline. “A party

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may not use a supplemental report to disclose information that should have been disclosed in the

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initial expert report, thereby circumventing the requirement for a timely and complete expert

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witness report.” Allstate Ins. Co. v. Balle, No. 2:10-cv-2205-APG-NJK, 2013 WL 5797848 at *2

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(D. Nev. Oct. 28, 2013). Because there is no reason why Dr. Carroll could not have provided the

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updated calculations and report by the disclosure deadline, his supplements are excluded.

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Dr. Carroll’s initial report is premised on incorrect legal bases. He calculates royalties

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from the date the defendants were notified about the infringement. Royalties may be recovered

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for the entire period of the infringement. Wolfe v. National Lead Co., 272 F.2d 867, 871 (9th Cir.

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1959), cert. denied 362 U.S. 950 (1960); see also Sands, Taylor & Wood v. Quaker Oats Co., 34

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F.3d 1340, 1343-45 (7th Cir. 1994) (approving calculation of royalties for the infringing period).

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Dr. Carroll also incorrectly asserts that Baskim is not entitled to recover both royalty payments

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(as a damage sustained by the plaintiff) and the defendants’ profits because that would constitute

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double recovery. Yet that is allowed by the Lanham Act. 15 U.S.C. § 1117(a) (“When a violation

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of any right of the registrant of a mark . . . shall have been established in any civil action arising

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under this chapter, the plaintiff shall be entitled . . . to recover (1) defendant’s profits, (2) any

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damages sustained by the plaintiff, and (3) the costs of the action.”). Thus, Dr. Carroll’s report is

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incorrect as a matter of law.

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Because Dr. Carroll’s report is incorrect as a matter of law, it is neither relevant nor

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reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). It will not

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help the jury understand the evidence or determine any fact in issue. Fed. R. Evid. 702(a). Thus,

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Dr. Carroll’s report and his testimony will be excluded at trial.

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IT IS THEREFORE ORDERED that the plaintiff’s motion in limine (ECF Nos. 130, 140)

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is granted. The testimony and reports of defendants’ expert Thomas Carroll, Ph.D. are excluded

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from trial.

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DATED this 8th day of June, 2018.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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