Krys v. Aaron

Filing 702

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 5/29/2015. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KENNETH M. KRYS, MARGOT
MACINNIS, and THE HARBOUR
TRUST CO. LTD.,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 14-2098 (JBS/AMD)

v.
ROBERT AARON, DERIVATIVE
PORTFOLIO MANAGEMENT LLC, DPMMELLON, LLC, DERIVATIVE
PORTFOLIO MANAGEMENT, LTD.,
DPM-MELLON, LTD, and BANK OF
NEW YORK MELLON CORPORATION,

MEMORANDUM OPINION

Defendants.

SIMANDLE, Chief Judge:
In this lengthy multi-district securities litigation
scheduled for trial on June 22, 2015, Plaintiffs Kenneth M.
Krys, Margot Macinnis, and The Harbour Trust Co. Ltd.
(collectively, “Plaintiffs”) move to amend [Docket Item 625] the
308 page Joint Final Pretrial Order entered in this action on
November 21, 2014.
Plaintiffs seek, in particular, to augment their exhibit
list with an additional 781 trial exhibits, to specifically state

1

Of these exhibits, Defendants consent to the addition of 21
exhibits. (See Defs.’ Opp’n at 18; Exs. E & F to Molton Dec.) ,
Plaintiffs’ motion will therefore be granted with respect to
these agreed-upon exhibits. (See Ex. F to Molton Dec. (setting
forth a table of the agreed-upon exhibits).) As a result, only
57 exhibits remain disputed in connection with the pending
motion.

a third-party beneficiary claim, and to designate Plaintiff
Kenneth M. Krys as a fact and expert witness, rather than solely
a fact witness.

(See Pls.’ Br. at 13-20; Pls.’ Reply at 1-10.)

In support of their request, Plaintiffs argue that
amendment would result in no prejudice, much less incurable
prejudice, to Defendants, because none of the proposed additions
address “new legal or factual theories,” nor did their initial
omission result from any intentional or willful conduct.
Br. at 13-20; see also Pls.’ Reply at 1-11.)

(Pls.’

Rather, Plaintiffs

take the position that the denial of their proposed amendments
would prove manifestly unjust to them, because the proposed
amendments concern critical evidence and claims in support of
Plaintiffs’ overall case. (See Pls.’ Br. at 13-20.)
Defendants counter, however, that the proposed amendments
must be rejected, as a result of Plaintiffs’ failure to
demonstrate manifest injustice in the absence of amendment.
(Defs.’ Opp’n at 11 (citations omitted).)

Defendants further

argue that any amendment would prejudice their preparedness for
the June 22, 2015 trial date, and would potentially require the
filing of additional in limine and/or Daubert motions.

(See id.

at 13.)
For the reasons that follow, Plaintiffs’ motion will be
granted in part and denied in part.

2 

The Court finds as follows:

1.

Following the filing of Plaintiffs’ initial and

amended state court complaints in early 2008, Defendants removed
this action to this federal Court on April 17, 2008. [See Docket
Item 41 in Civil Action No. 08-1902 (JBS/AMD).]

Shortly

thereafter, however, the Judicial Panel on Multi-District
Litigation transferred this action to the Southern District of
New York (hereinafter, the “MDL District Court”) for inclusion
in MDL No. 1902.

[See Docket Item 41 in Civil Action No. 08-

1902 (JBS/AMD).]

Following seven years of litigation before the

MDL District Court, the exchange of tens of thousands of
documents (if not substantially more), and the completion of
hundreds of depositions, the MDL District Court transferred this
action back to this Court for all further proceedings on March
24, 2014. [See Docket Item 505.]
2.

Immediately upon remand, this Court entered an Order

directing the parties to submit “a joint status report setting
forth the remaining issues in this action, as well as proposed
deadlines for preparing the Joint Final Pretrial Order.”
[Docket Item 520.]

In response, the parties submitted competing

proposals, with Defendants proposing that the joint final
pretrial order be due no earlier than December 2014, and with
Plaintiffs requesting that the joint final pretrial order be due
no later than August 2014.

[See Docket Item 521.]

As relevant

here, Plaintiffs further argued that any additional time would
3 

be unnecessary, because the “parties have had several years to
start preparing for trial,” and given that time, have
“presumably identified the key documents” and witnesses for
purposes of trial.2

[Id. at 5.]

Nevertheless, on August 14,

2014, the Court directed Plaintiffs and Defendants to complete
their portions of the proposed pretrial order by no later than
September 15, 2014 and October 14, 2014, respectively, and
required the parties’ joint proposed pretrial order to be
submitted to the Court by no later than October 31, 2014.

[See

Docket Item 530.]
3.

As a result, counsel for Plaintiffs met with the

paralegal tasked with the preparation of Plaintiffs’ exhibit
list, Wendy Wise, in early September for the purposes of
eliminating any irrelevant documents.
9; Weis Dec. at ¶¶ 8-12.)

(See Andelin Dec. at ¶ 8-

Following certain deletions, counsel

for Plaintiffs incorporated the draft exhibit list into
Plaintiffs’ portion of the proposed pretrial order, and sent the
draft, in its entirety, to Defendants. (See Andelin Dec. at ¶
10; Wise Dec. at ¶ 12.)

Defendants served their portion of the

pretrial order on October 21, 2014 (see Ex. 2 to Pendleton Dec.)
and the parties proceeded to discuss, on numerous occasions,
certain modifications, deletions, and additions to the proposed
2

Indeed, Plaintiffs, for their part, appear to have begun the
preparation of their witness and exhibit lists as of “no later
than” April 2014. (Weis Dec. at ¶ 8.)
4 

pretrial order prior to its submission to the Court.
e.g., Exs. 2, 3, & 4 to Pendleton Dec.)

(See,

Follow submission,

counsel then acknowledged and affirmed their approval of the
Joint Final Pretrial Order (hereinafter, the “JFPTO”) at the
final pretrial conference (see Ex. 1 to Pendleton Dec.), and the
Court entered it on November 21, 2014.

[See generally Docket

Item 545.]
4.

The JFPTO itself, a document that spans 308 pages,

underscores the complexity of this litigation and the sheer
volume of information amassed by the parties.
id.]

[See generally

As relevant here, the JFPTO specifically reflects the

striking number of proposed witnesses and exhibits, including:
Fact
Witnesses

Expert
Witnesses

Trial
Exhibits

Plaintiffs

23

5

189

Defendants

30

4

1022

[See id. at 100-207.]

As a result, the parties have prepared

for trial based upon the contents of the already expansive
JFPTO, and have filed and responded to 7 motions to exclude
expert testimony, and 27 motions in limine.
5.

Nevertheless, on March 25, 2015, counsel for

Plaintiffs provided counsel for Defendants with a revised
exhibit list, which included “a number of new exhibits” that
counsel had identified in preparing for trial.

5 

(Ex. A to Molton

Dec.)

The revised exhibit list sought, in particular, to

increase Plaintiffs’ proposed trial exhibits from 189 to 359
exhibits. (See generally id.) The following day, counsel for
Plaintiffs then provided “a couple of additional points”
concerning the JFPTO, and specifically stated their intention
(1) to call Plaintiff Kenneth Krys as an expert witness and (2)
to rely upon a third-party beneficiary theory.
Dec.)

(Ex. L to Molton

On March 20, 2015, Defendants objected to Plaintiffs’

attempt to “double their trial exhibit list,” to characterize
Mr. Krys as an expert witness (in addition to a fact witness),
and to raise a third-party beneficiary theory at trial.

(Ex. B

to Molton Dec. (emphasis in original).)
6.

In light of Defendants’ objections, Plaintiffs reduced

the number of additional exhibits to 88 (all while maintaining
their position concerning Mr. Krys and the third-party
beneficiary theory), and broke down the proposed revisions to
their exhibit list into four categories (with some bearing
multiple classifications), namely, (1) documents referred to in
Plaintiffs’ experts’ reports; (2) documents allegedly left off
of Plaintiffs’ exhibit list due to inadvertence; (3) newly
identified exhibits; and (4) statutes, regulations, rules,
accounting standards, and similar sources. (See Exs. C, D, J to
Molton Dec.; see also Pls.’ Br. at 2.)

In addition, Plaintiffs

produced various declarations, which attributed the omitted
6 

exhibits to the fact that Ms. Wise suffered an undisclosed, yet
significant, health condition during the time in which she
drafted Plaintiffs’ incomplete exhibit list (see Wise Dec. at ¶¶
10-17), and explained that counsel’s failure to closely
supervise Ms. Wise’s efforts resulted from her preparation of
“countless exhibit lists” without issue for over a decade.
(Andelin Dec. at ¶¶ 16-18.) Despite the reduction and
explanation, Defendants did not, however, agree without
reservation to all of Plaintiffs’ proposed additions (see Ex. E
to Molton Dec.), and the pending motion followed.
7.

A final “‘pretrial order when entered limits the

issues for trial and in substance’” supersedes the pleadings
“‘covered by the pretrial order.’”

DiNennon v. Lucky Fin Water

Sports, LLC, 837 F. Supp. 2d 419, 423 (D.N.J. 2011) (quoting
Basista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965)).

Failure to

raise any “‘claims, issues, defenses, or theories of damages’”
therefore generally results in waiver, “‘even if they appeared
in the complaint.’”

Bornstein v. Cnty. Of Monmouth, No. 11-

5336, 2015 WL 2125701, at *8 (D.N.J. May 6, 2015) (quoting
Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir. 2002)).
8.

Federal Rule of Civil Procedure 16(e) provides that a

final pretrial order may be modified in order to prevent
“manifest injustice.”

FED. R. CIV. P. 16(e).

The existence of

manifest injustice, in turns, requires inquiry into the
7 

following factors: (1) the prejudice or surprise to the
nonmoving party; (2) the ability of the nonmoving party to cure
the prejudice; (3) the extent to which amendment would disrupt
the orderly and efficient trial of the case; (4) whether the
proposed amendment results from any bad faith or willfulness;
(5) the ability of the movant to have discovered the witnesses,
evidence, claims or defenses earlier; (6) the validity of the
excused offered by the dilatory party; (7) the relative
importance of the additional evidence; and (8) whether the
decision to amend amounts to a matter of new strategy or tactic.
See, e.g., Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1236
(3d Cir. 1994) (citing Beissel v. Pittsburgh & Lake Erie R. Co.,
801 F.2d 143, 150 (3d Cir. 1986), cert. denied, 479 U.S. 1088
(1987)); Scopia Mortg. Corp. v. Greentree Mortg., Co., L.P., 184
F.R.D. 526, 528 (D.N.J. 1998) (citations omitted).
9.

Applying these factors, the decision of whether to

permit amendment to a joint pretrial order ultimately rests
within the court’s discretion.

See, e.g., Joy Mfg. Co. v. Sola

Basic Indus., Inc., 697 F.2d 104, 109 (3d Cir. 1982) (citations
omitted); Analytical Measurements, Inc. v. The Keuffel & Essex
Co., 843 F. Supp. 920, 926 n. 4 (D.N.J. 1993) (citations
omitted).

8 

10.

Here, Plaintiffs seek, as stated above, to amend the

final pretrial order in three primary respects. (See generally
Pls.’ Br.; Pls.’ Reply.)
11.

The Court will address each in turn.

Plaintiffs first request to amend their exhibit list

in order to include 57 additional exhibits.3
Pls.’ Reply at 4.)

(See generally

With respect to those 27 exhibits that

constitute documents referred to in Plaintiffs’ experts’ reports
and inadvertently omitted from Plaintiffs’ exhibit list
purportedly as a result of a well-documented health condition,
the Court finds amendment warranted.

(See Ex. G to Molton Dec.)

Indeed, given the fact that Plaintiffs’ experts disclosed their
reliance upon these documents (in reports otherwise reflected in
the JFPTO), Defendants cannot claim any significant surprise
from Plaintiffs’ intention to rely upon them at trial.

Nor can

the information relied upon by known experts fairly be construed
as new factual evidence.

Plaintiffs have further provided a

valid and legitimate explanation for these documents’ initial
omission (see generally Wise Dec.), thereby diminishing any
conceivable inference that these additions resulted from bad
faith or tactical maneuvering.

Finally, even if amendment in

this respect results in some incidental prejudice, Defendants
still have the opportunity to voice their objections during the

3

Defendants, as stated above, consented to amendment with
respect to 21 of the initial 78 exhibits.
9 

course of trial.

For these reasons, the Court will grant

Plaintiffs’ motion as to these 27 documents,4 without prejudice
to Defendants’ right to object to their admission in the event
Plaintiffs do indeed attempt to introduce them.5

See Lentz v.

Mason, 32 F. Supp. 2d 733, 738 (D.N.J. 1999) (finding “little
surprise” and no indication of prejudice, and therefore
permitting the defendants to add 22 new exhibits to the joint
final pretrial order).

Therefore, the Court turns to the next

category of proposed exhibits.
12.

With respect to the 6 exhibits that constitute

documents referred to in Plaintiffs’ experts’ reports and that
are essentially secondary sources, including various sections of
Financial Accounting Standards and visual depictions of CFTC and
SEC regulations, the Court similarly finds amendment warranted.
(See Ex. G to Molton Dec.)

Indeed, because this case concerns,

in essence, financial mismanagement, Plaintiffs’ proposed
reliance upon well-known financial and accounting standards
hardly comes as any surprise.

Even more, Plaintiffs’ experts’

reports placed Defendants on notice of these documents potential
4

These documents specifically include P-191, P-192, P-197, P207, P-212, P-217, P-224, P-225, P-226, P-227, P-244, P-258, P261, P-274, P-287, P-288, P-289, P-295, P-297, P-300, P-310, P347, P-348, P-357, P-358, P-359, P-360. (See Ex. G to Molton
Dec.)
5 The Court recognizes the strong likelihood that the parties
will never seek the admission of at least some, if not many, of
their exhibits (both those presently identified and those sought
for inclusion).
10 

and/or intended inclusion and their usage will, in all
likelihood, be limited to the examination of the experts
themselves if the hearsay exception for learned treatises in
Fed. R. Evid. 803(18) is complied with.

For these reasons, the

Court will also grant Plaintiffs’ motion as to these 6
documents,6 again without prejudice to Defendants’ right to
object to their admission in the event Plaintiffs do indeed
attempt to introduce them.

Therefore, the Court turns to the

final category of proposed exhibits.
13.

With respect to the 25 documents designated as only

inadvertently omitted, or inadvertently omitted and new,
however, the Court cannot find the absence of any surprise to
Defendants.

(See Ex. G to Molton Dec.)

Nor can the Court find

that their admission would result in no or only minimal
prejudice.7

Indeed, many of these documents concern specific

exchanges (by email, fax, and otherwise) between entities and/or
parties to this litigation and their late inclusion within the
JFPTO may therefore require—and indeed likely will require—
Defendants to thoroughly review these additional exhibits, to

6

These documents specifically include P-322, P-333, P-334, P337, P-339, P-340. (See Ex. G to Molton Dec.)
7 The already large number of exhibits does not diminish any
potential prejudice. (See Pls.’ Reply at 4.) Rather, the
relevant inquiry concerns whether the proposed additions result
in prejudice and/or surprise of an incurable variety. Here, the
Court finds that these factors weigh too strongly in Defendants’
favor to permit amendment.
11 

re-prepare witnesses, and to perform an array of attendant
tasks.

In that respect, the admission of these documents will

disrupt the orderly and efficient trial of this action, on the
eve of trial and six months after preparation and entry of the
JFPTO, by invariably resulting in requests for significant
adjournments of the trial date and possibly even a request for
some limited discovery.8

The cumulative effect of Plaintiffs’

belated amendments, including those permitted above, renders
this aspect unreasonable given the time constraints.

For these

reasons, Plaintiffs’ motion will be denied with respect to these
25 exhibits.9
14.

Plaintiffs next request leave to amend the JFPTO in

order to include the third-party beneficiary theory pleaded in
Plaintiffs’ Complaint at the outset of this litigation.

8

(See,

This proves particularly true with respect to the two entirely
new exhibits: two articles dated April 14, 2015 (produced more
than 5 months after entry of the JFPTO). (See Ex. G to Molton
Dec.) These articles concern, in particular, a penalty imposed
against Defendant the Bank of New York Mellon and arising out of
an unrelated incident concerning the custody of client assets.
(See Ex. J to Molton Dec. (setting forth the two articles).)
This action has been pending for over 7 years. As a result,
these articles do not constitute important or critical evidence
to Plaintiffs’ case, particularly because they concern a
financial penalty that arose from conduct more recent than (and
unconnected to) that alleged in this instance and because the
penalty was assessed under an authority not implicated here.
(See id.)
9 These documents specifically include P-199, P-200, P-213, P222, P-264, P-271, P-272, P-281, P-318, P-320, P-329, P-330, P341, P-342, P-343, P-344, P-350, P-351, P-353, P-354, P-356, P361, P-362, P-363. (See Ex. G to Molton Dec.)
12 

e.g., Pls.’ Br. at 16-18; Pls.’ Reply at 7-10.)

In opposing

Plaintiffs’ proposed amendment in this respect, Defendants argue
that Plaintiffs’ failure to preserve the claim in the JFPTO
waived their right to pursue it at trial, and that the proposed
addition would in any event prejudice Defendants’ pending in
limine motion.10

(Defs.’ Opp’n at 16-17.)

After consideration

of these arguments, the Court will, for the reasons that follow,
permit the amendment.
15.

In that respect, the Court notes, at the outset, that

it is “‘established law’” that claims or defenses set forth in
the pleadings, but omitted from the final pretrial order, may be
deemed abandoned.

Metal Processing, Inc. v. Humm, 56 F. Supp.

2d 455, 471 (D.N.J. 1999) (quoting Basista, 340 F.2d at 84;
citing Kline v. S.M. Flickinger Co., 314 F.2d 464, 467 (3d Cir.
1964)).

Nevertheless, Rule 16(e)’s prohibition against

amendment absent manifest injustice aims “‘to insure the
efficient resolution of cases and, most importantly, [to]
minimize prejudicial surprise.’”

Morton Int’l, Inc. v. A.E.

Staley Mfg. Co., 343 F.3d 669, 684 (3d Cir. 2003) (quoting

10

Moreover, because inclusion of this claim would purportedly
prove “futile,” Defendants argue that “there can be no manifest
injustice” to Plaintiffs. (Defs.’ Opp’n at 16.) Without
passing judgment on the ultimate merit of Defendants’ position,
the Court finds that Defendants have not demonstrated that the
claim would be so plainly futile as to disrupt the orderly and
efficient trial of this action. See Joy Mfg. Co., 697 F.2d at
109.
13 

Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir. 1989)).

It does

not, however, serve “‘as an inflexible straightjacket on the
conduct of litigation.’”

Id. (citation omitted); see also

Brooks v. Wootton, 355 F.2d 177, 178 (2d Cir. 1966) (citation
omitted) (noting that “‘an unswerving insistence upon every
provision of a pretrial order’” may, by itself, “‘cause
injustice’”).
16.

Here, Defendants do not claim that Plaintiffs’

proposed addition seeks to interject a new theory upon which
discovery must be taken, nor that the pursuit of this claim at
all changes the complexion of this litigation.
Defs.’ Opp’n at 16-17.)

(See generally

Even more, Defendants do not claim any

lack of familiarity with the Service Agreement that forms the
predicate of Plaintiffs’ third-party beneficiary theory.

To the

contrary, Defendants directly address Plaintiffs’ third-party
beneficiary theory, in addition to certain interpretive issues
relative to the Service Agreement, in their statement of
disputed legal issues within the JFPTO.
17.

(See JFPTO at 291-92.)

In that respect, the JFPTO reflects, on its face,

Defendants’ expectation or at least implicit assumption that the
claim remained active in this litigation and intended for
inclusion at trial.

Indeed, the parties undertook extensive

discovery with respect to this claim, presumably in furtherance
of that specific purpose. (See, e.g., Pls.’ Reply at 7-8.)
14 

In

that respect, Plaintiffs’ third-party beneficiary theory
constitutes far more than a claim innocuously included in an
initial pleading, yet never pursued through discovery nor
otherwise litigated throughout the lengthy proceedings in this
action.11

Therefore, although Plaintiffs’ failure to include the

claim in the JFPTO “violates the letter of Rule 16(e),” the
Court finds that its addition to the JFPTO “does not violate the
purpose of the rule,” nor does it result in any “‘prejudicial
surprise.’”

Morton Int’l, Inc., 353 F.3d at 685 (citation

omitted); see also Morales-Evans v. Admin. Office of the Courts
of the State of N.J., 102 F. Supp. 2d 577, 585 (D.N.J. 2000)
(permitting amendment whether the plaintiffs pled the additional
claim in their complaint and took “extensive discovery” under
the presumption that the claims remained active); Newsome v.
Admin. Office of the Courts of the State of N.J., 103 F. Supp.
2d 807, 815-16 (D.N.J. 2000) (same), aff’d, 51 F. App’x 76 (3d
Cir. 2002).
18.

Nor does the amendment’s potential impact on

Defendants’ in limine motion compel any different result.
Defs.’ Opp’n at 17 n.8.)

(See

Indeed, although the inclusion of the

11

For that reason, the Court finds no basis to conclude that
Plaintiffs’ omission resulted from strategic maneuvering or bad
faith conduct. Rather, the error amounts to attorney
inadvertence, which, while troubling in a case of this
magnitude, does not warrant denial of Plaintiffs’ request absent
undue prejudice to Defendants.
15 

third-party beneficiary claim may require revision to, or the
withdrawal of, Defendants’ in limine motion concerning the
Service Agreement [see Docket Item 599], that fact alone does
not constitute prejudice sufficient to preclude Plaintiffs from
pursuing their claim, particularly because this amendment will,
in all likelihood, prompt Defendants to withdraw their motion, a
right always reserved to a party.

(See id.)

For all of these

reasons, Plaintiffs’ motion will be granted with respect to the
third-party beneficiary claim.
19.

Finally, the Court turns to Plaintiffs’ request to

designate Mr. Krys, an individual already identified as one of
Plaintiffs’ fact witnesses, as an expert witness.
Pls.’ Br. at 19-20; Pls.’ Reply at 10-11.)

(See, e.g.,

In opposing

Plaintiffs’ request, Defendants argue that Plaintiffs’ late
stage designation of Mr. Krys as an expert witness prejudices
their interests, because Defendants did not, in reliance upon
the JFPTO, “expend resources drafting a Daubert motion as to
him.”

(Defs.’ Opp’n at 18.)

Nevertheless, the Court need not

belabor Defendants’ assertions, because the Court finds no
prejudice sufficient to deny Plaintiffs’ request.
20.

Critically, in a letter dated January 30, 2012,

counsel for Plaintiffs disclosed their intention to rely upon
Mr. Krys as an expert witness on an array of issues, including
“the SPhinX Fund,” the “liquidating and winding up of the SPhinX
16 

Funds,” “[a]ccounting,” “[c]ash, cash management, and cash
movement,” and the “SPhinX Funds’ accounts at banks.” (See Ex. 5
to Pendleton Dec.)

Mr. Krys then issued two expert reports in

connection with those topics (see JFPTO at 120), and
specifically testified about them during his expert deposition.
(See Ex. B to Molton Dec.; Defs.’ Opp’n at 16-17; Pls.’ Reply at
10.)

As a result, it comes as no surprise that the JFPTO

reflects both parties’ intention to call Mr. Krys to testify
with respect to these very topics.

(See JFPTO at 100, 108-09.)

Nor can Defendants claim any significant surprise in Plaintiffs’
proposed reliance upon Mr. Krys for the expert opinions he
rendered in his expert reports.

Indeed, Defendants specifically

objected to Mr. Krys’ proposed fact testimony on the ground that
it exceeded the limits of lay witness testimony under Federal
Rule of Evidence 701 (see id. at 105), and Plaintiffs have
reiterated that Mr. Krys’ testimony (in whatever capacity) will
extend no further than the subject matter disclosed in early
2012, discussed in Mr. Krys’ expert reports and at his
deposition, and reflected in the JFPTO.

(See Ex. L to Molton

Dec.)
21.

In that respect, Plaintiffs’ omission of Mr. Krys from

their list of proposed experts amounts to an error of limited
significance, because Mr. Krys’ proposed testimony, regardless
of its classification, will concern topics long known to, and
17 

actively explored by, Defendants.

Indeed, Plaintiffs’ proposed

amendment would appear to do little more than clarify an issue
otherwise plainly reflected in the overall JFPTO.12

Moreover,

because the Court will permit Defendants to file a motion to
exclude Mr. Krys’ expert testimony under Daubert and Federal
Rule of Evidence 702, if appropriate, any incidental prejudice
resulting from Plaintiffs’ amendment will be cured.13

For these

reasons, Plaintiffs’ motion will be granted with respect to Mr.
Krys.

See Fried v. Tetzlaff, No. 11-2578, 2014 WL 2861098, at

*8 (D.N.J. June 24, 2014) (citation omitted) (permitting an
amendment, where the defendants could claim no “‘surprise[]’” by
the proposed addition, because it had, in essence, “already been
included” in the final pretrial order and relied upon no new
“evidentiary basis”).
22.

An accompanying Order will be entered.

May 29, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

12

Moreover, even if Defendants held any doubt concerning the
true nature of Ms. Krys’ testimony, counsel for Plaintiffs put
such doubt to rest as of no later than March 26, 2015 when they
specifically clarified their intentions. This clarification came
well in advance of the June 22, 2015 trial date, therefore
further diminishing any arguable claim of prejudice.
13 The Court will issue a separate Scheduling Order concerning
the briefing schedule of this anticipated motion.
18