Nerium SkinCare Inc et al v. Nerium International LLC et al

Filing 542

ORDER ADOPTING SPECIAL MASTERS REPORT AND RECOMMENDATION. The Court will decide whether to exclude witnesses Jones, Pannu, and Newman's testimony at the pretrial conference. The Court denies the motions to exclude the testimony of: 1. Erica Bramer 387 , 2. Clifford Wright 453 , 3. Todd Burchett 402 , 4. Trevor Scofield 390 . (Ordered by Judge Jane J. Boyle on 7/20/2018) (zkc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NERIUM SKINCARE, INC., on behalf of
itself and in a derivative capacity for
Nerium International, LLC, and NERIUM
BIOTECHNOLOGY, INC.,

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Plaintiffs,
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v.
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NERIUM INTERNATIONAL, LLC, JEFF §
A. OLSON, and JO PRODUCTS, LLC,
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Defendants.
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CIVIL ACTION NO. 3:16-CV-1217-B

ORDER ADOPTING SPECIAL MASTER’S REPORT AND RECOMMENDATION
On June 28, 2017, the Court appointed, pursuant to Federal Rule of Civil Procedure 53,
retired United States Magistrate Judge Jeff Kaplan as the Special Master in this case. Doc. 281, Order
Appointing Special Master. On July 3, 2018, Judge Kaplan issued a report and recommendation on
the parties’ motions to exclude the testimony of certain expert witnesses. Doc. 521, Notice of R&R.
Having reviewed Judge Kaplan’s Report and Recommendation, the parties’ objections to the
report, and responses to those objections, the Court ADOPTS Judge Kaplan’s report except as
follows.
First, the plaintiffs moved to exclude Lawrence Ranallo’s testimony. They argued that the
Court should exclude Ranallo’s testimony in part because Ranallo did not disclose that Price
Waterhouse Coopers (PWC) employees helped him to prepare his expert report. But the plaintiffs
did not make this argument until their reply in support of their motion to exclude. Because the
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plaintiffs raised the argument only in their reply, Judge Kaplan declined to rule on it. Now, the
plaintiffs say they raised the argument as soon as they could, and they contend that Judge Kaplan
should have considered their argument or that the argument is properly before the Court anyways.
The Court declines at this time to decide whether to exclude Ranallo’s testimony based on his
alleged failure to disclose PWC’s work on his expert report but will rule on the admissibility of
Ranallo’s testimony at the pretrial conference. The Court directs the defendants to supplement
their response to the plaintiffs’ objection to Judge Kaplan’s report and recommendation with briefing
responding to the plaintiffs’ argument that the Court should exclude Ranallo’s testimony because of
his failure to disclose the work that PWC performed on his report. The defendants should file this
briefing by 5:00pm on Wednesday, July 25.
Second, the defendants moved to exclude the testimony of Lori Jones, Herjit Pannu, and
Robert Newman. Judge Kaplan recommended that the Court deny the defendants’ motion but
ordered the plaintiffs to supplement their disclosures of these experts’ opinions and allowed the
defendants to depose Lori Jones again. Even after the supplemental disclosures and deposition, the
defendants maintain that the Court should prevent Jones, Pannu, and Newman from offering expert
opinions at trial. The Court continues to consider the briefing on this argument, and though the
Court declines to adopt Judge Kaplan’s report and recommendation on Jones, Pannu, and Newman
at this time, the Court will decide whether to exclude these witnesses’ testimony at the pretrial
conference.
Aside from those two exceptions: the court adopts in full Judge Kaplan’s report and
recommendation. The Court denies the motions to exclude the testimony of:

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1.

Erica Bramer

2.

Clifford Wright

3.

Todd Burchett

4.

Trevor Scofield

SO ORDERED.
SIGNED: July 20, 2018.
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JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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