Sankaranarayanan v. Sashidhar

Filing 47

ORDER. The Court GRANTS in part and denies in part Respondent's Motion to Exclude. Dkt. # 29 . The Court excludes any of Dr. Favaro's testimony or portions of the report from that exceed the scope of rebuttal testimony for Respondent' s affirmative defense. The Court directs Petitioner to provide Respondent an articulation of Dr. Favaro's rebuttal testimony by January 4, 2025 at 12:00 pm (PST). The Court will address Petitioner's objections to proposed exhibits in a forthcoming order. Signed by Judge Richard A. Jones. (KRA)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PRASANNA SANKARANARAYANAN,
Petitioner,
Case No. 24-cv-01745-RAJ

vs.
DHIVYA SASHIDHAR,

ORDER

Respondent.

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I.

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INTRODUCTION

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THIS MATTER is before the Court on Respondent’s Motion in Limine to Exclude

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Testimony and Report of Petitioner’s Expert, Dr. Peter Favaro (“Motion to Exclude” or

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“Respondent’s Motion”). Dkt. # 29. Petitioner opposes the Motion to Exclude. Dkt. # 32.

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The Court has considered the parties’ briefing, the applicable law, and the balance of the

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record. For the reasons below, the Court GRANTS in part and denies in part Respondent’s

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Motion.

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ORDER – 1

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II.

On October 25, 2024, Petitioner Prasana Sankaranarayanan, initiated this action, by
filing a Petition for Return of Child to the State of Habitual Residence. Dkt. # 1. On
November 1, 2024, Respondent, Dhivya Sashidhar, was served with summons and
complaint in Redmond, Washington. Dkt. # 8. Petitioner alleges that Ms. Sashidhar
unlawfully removed the parties’ minor son, S.A. (“the child” or “S.A.”), from Singapore
to the United States on October 14, 2024. Dkt. # 1 ¶¶ 1, 23.
Hague Convention cases are generally expedited in nature—with six weeks
recommended for resolution. See Hague Convention, arts. 2, 11; see also Chafin v. Chafin,
568 U.S. 165, 179–80 (2013) (urging district courts to expedite Hague cases). The Court
held a telephone conference with the parties on November 22, 2024, where it set an
evidentiary hearing in this matter for January 6, 2025. Dkt. # 19.
Following the conference, the Court signed a scheduling order, containing language
and dates proposed by the parties, which set deadlines for filings and disclosures before
the hearing. Dkt. # 25. The parties dispute whether the deadlines applied to both parties,
which the Court discusses in more detail in Section IV.B.1 infra. On December 27, 2024,
Respondent filed a Motion to Exclude, asking the Court to exclude Petitioner’s expert
witness, Dr. Favaro. Dkt. # 29. Respondent argues that Petitioner failed to comply with
the scheduling order in violation of Fed. R. Civ. P. 26(a)(2)(B) and 37(c)(1). Respondent
asserts Petitioner untimely disclosed an affirmative expert witness after the deadlines for
disclosure and reports had passed. See id.

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BACKGROUND

ORDER – 2

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III.

Rule 26(a)(2)(B) requires the parties to disclose the identity of each expert witness
accompanied by a written report prepared and signed by the witness. Fed. R. Civ. P.
26(a)(2)(B). Rule 37 “gives teeth” to Rule 26’s disclosure requirements. Yeti by Molly,
Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c)(1) states
that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” See also Karpenski v. Am. Gen. Life Ins. Cos., LLC, 999 F. Supp. 2d 1235,
1241 (W.D. Wash. 2014) (citing Yeti, 259 F.3d at 1106) (“District courts have wide latitude
to impose discovery sanctions pursuant to Rule 37(c)(1).”). Litigants can escape the
“harshness” of exclusion only if they prove that the discovery violations were substantially
justified or harmless. Yeti by Molly Ltd., 259 F.3d at 1106 (citing Fed. R. Civ. P. 37(c)(1)).
A.

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LEGAL STANDARD

IV. DISCUSSION
The Parties’ Arguments
1.

Respondent’s Position

Respondent’s Motion asks the Court to exclude the testimony and report of one of
Petitioner’s experts, Dr. Peter Favaro. Dkt. # 29. According to Respondent, on December
10, 2024, Respondent’s counsel received an email from Petitioner’s counsel, indicating
that Petitioner had retained expert witness Dr. Favaro, to serve as a rebuttal expert. See id.
at 2. Dr. Favaro was not disclosed as an expert witness or a witness in Petitioner’s initial
disclosures. See id. Respondent then brought the child to meet with Dr. Favaro on three
consecutive days so that he could conduct an evaluation. See id.
Respondent asserts that Dr. Favaro is an affirmative expert, despite Petitioner’s
contention that Dr. Favaro is merely a rebuttal expert. See id. at 2–3. Respondent asserts
that Dr. Favaro “was clearly retained . . . to provide an initial expert opinion[]” because:
1) the report’s title does not indicate is a rebuttal report; 2) the substance of the report
ORDER – 3

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contains definitive conclusions; and 3) the opinions and conclusions in the report exceed

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rebutting Respondent’s expert reports. See id. Notably, according to Respondent, Dr.

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Favaro’s report concludes that Respondent “exerts undue influence on the child and may

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even be maltreating the child.” Id. at 3.

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Respondent asserts that Petitioner’s disclosure of the report on December 23, 2024

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was untimely and has caused undue prejudice to Respondent. Dkt. # 29 at 4. First,

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Respondent is left with no time to retain a rebuttal expert for Dr. Favaro’s opinions and

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conclusions. See id. at 3. Second, due to the timing of the report’s disclosure, Respondent

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could not depose Dr. Favaro prior to the Court’s deposition deadline. See id.

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2.

Petitioner’s Position

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Petitioner’s Opposition states that Petitioner complied with the Court’s scheduling

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order because the dates and language in the order indicate they were dates for Respondent

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to disclose experts and serve expert reports. Dkt. # 32 at 2. Petitioner opposes exclusion,

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arguing that the dates in the scheduling order do not set dates for Petitioner’s affirmative

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or rebuttal experts, thus Petitioner did not miss any deadline. Dkt. # 32. Further, Petitioner

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asserts that Dr. Favaro is only a rebuttal expert witness, a child forensic psychologist,

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retained to address Respondent’s grave risk and mature child affirmative defenses. See id.

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at 3. Petitioner maintains that Dr. Favaro’s report was properly disclosed on December 23,

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2024. See id at 2.

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B.

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Analysis
1.

The Scheduling Order

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A threshold question that the Court must address is whether the Court’s deadline for

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experts applied to both parties. Here, the parties interpret the scheduling order differently.

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The body of the scheduling order required “Respondent” to serve expert disclosures by

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December 2, 2024. Dkt. # 25. The scheduling order also required “Respondent” to serve

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initial expert reports by December 9, 2024. Id. The text of the scheduling order is silent

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ORDER – 4

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as to the timing for Petitioner’s disclosures for affirmative expert witnesses, and it only

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indicates that the parties were to serve rebuttal expert reports by December 20, 2024. 1 See

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generally id. The minute entry text reads:

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The Court sets forth a schedule and modifies the Proposed Scheduling order as described
herein. Expert Disclosures to be served no later than 12/2/2024, Initial Disclosure to be
served by 12/5/2024, Expert Reports under FRCP 26(a)(2) due by 12/9/2024, Rebuttal
Expert Reports due by 12/20/2024, Motions in Limine due by 12/20/2024, Pretrial Briefs
due by 12/27/2024, Proposed Exhibits, Exhibit List and Witness list due by 12/30/2024,
Evidentiary Hearing set for 1/6/2025 at 9:00 AM. Signed by Judge Richard A. Jones.

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See id. The scheduling order and the accompanying minute entry are both silent as
to rebuttal expert disclosure.
Petitioner’s attempt to distinguish the text of the scheduling order from the minute
entry accompanying the order signals gamesmanship that the Court will not tolerate. The
minute entry is part and parcel of the Court’s order. To the extent Petitioner believed these
to be conflicting or unclear, Petitioner could have sought clarity instead of trying to use the
discrepancy to a tactical advantage. The text of the order on the docket entry is abundantly
clear that these deadlines applied to both parties.
Petitioner’s contention about the need for experts arising after December 2, 2024 is
similarly disingenuous. In the Opposition, Petitioner claims: “Petitioner did not even know
if he needed experts on December 2, 2024 before Respondent disclosed that she would in
fact be utilizing an expert.” Dkt. # 36 at 2. First, Petitioner’s counsel repeatedly discussed
experts during the November telephone conference. See e.g., Dkt. # 24 at 5:9–12; 6:18–
23; 7:5–13,7:24–25, 8:8–11, 15:5–14, 17:8–16. Second, during the telephone conference,
Respondent’s counsel clearly indicated that Respondent had retained an expert witness and
stated: “I would have no problem disclosing our expert’s name at this point, but we do have
at least one lined up.” Id. at 13:3–5.

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On agreement by the parties and approval of the Court, the date for rebuttal reports was later changed to December
24, 2024. See Dkt. # 28. However, the Court will refer to the original scheduling order because that is the order at
issue here.

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The Court’s concludes that the deadline for expert disclosure applied to both parties

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with equal force. Petitioner knew of Respondent’s expert well before the disclosure date

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during the telephone conference. The Court considers the disclosure for affirmative and

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rebuttal experts below.

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1.

Affirmative Expert Testimony

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Although Petitioner claims that all of the testimony is merely rebuttal testimony, the

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Court is not completely persuaded that is correct. The 20-page expert report is extensive

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and appears to offer opinions and conclusions beyond those that would be relevant to

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rebutting the affirmative defenses. See generally Dkt. # 36-1. For example, Dr. Favaro’s

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opinion that that Respondent’s “parental gatekeeping” amounts to maltreatment of the child

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does not address the grave risk or mature child affirmative defenses. See id. at 17.

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Accordingly, the Court concludes the scope of the Dr. Favaro’s report exceeds rebuttal

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testimony. Therefore, Petitioner untimely disclosed Dr. Favaro as an affirmative expert

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witness.

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2.

Rebuttal Expert Testimony

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As the scheduling order did not set forth deadlines for disclosing rebuttal experts,

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the Court considers the timeframes ordinarily imposed under the Federal Rules of Civil

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Procedure. A rebuttal expert may be disclosed within 30 days after the other party’s expert

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disclosure “if the evidence is intended solely to contradict or rebut evidence on the same

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subject matter identified by another party.” Fed R. Civ. P. 26(a)(2)(D)(ii) (emphasis

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added). This is not very instructive in this matter given the extremely tight deadlines in

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expedited Hague Petition cases.

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inappropriateness of using the Federal Rules to supply the rebuttal expert deadline, the

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Court must look to other authority to resolve this issue.

Given the silence in the scheduling order and the

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Persuasive authority from this District and elsewhere advises that the party with the

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burden of proof on an issue, here the party asserting an affirmative defense, should disclose

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ORDER – 6

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its expert testimony before the other party is required to disclose an expert to rebut that

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opinion testimony. See, e.g., Leeper v. City of Tacoma, No. 20-cv-5467, 2024 WL

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5108476, at *2 (W.D. Wash. Dec. 13, 2024); U.S. Bank, N.A. v. Glogowski L. Firm, PLLC,

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339 F.R.D. 579, 580 (W.D. Wash. 2021); Theoharis v. Rongen, No. 13-cv-1345, 2014 WL

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3563386, at *4 (W.D. Wash. July 18, 2014) (declining to adopt the rule that expert

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testimony on an anticipated portion of an opposing party’s case cannot be rebuttal expert

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testimony”); see also Advisory Comm. Notes to 1993 Amendments to Fed. R. Civ. P. 26.

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With this authority in mind and given the silence of the scheduling order, it appears

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that Petitioner’s disclosure of Dr. Favaro on December 10, 2024, shortly after Respondent

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served affirmative expert reports is appropriate.

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Petitioner timely disclosed Dr. Favaro as a rebuttal expert.

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3.

Accordingly, the Court finds that

Sanctions

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As discussed in Section III supra, Rule 37(c)(1) is an “automatic” sanction that

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prohibits the use of improperly disclosed evidence. Yeti by Molly, 259 F.3d 1101, 1106

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(9th Cir. 2001). Litigants can escape exclusion only if they prove that the discovery

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violations were substantially justified or harmless. Id. (citing Fed. R. Civ. P. 37(c)(1)).

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“The automatic nature of the rule’s application does not mean that a district court must

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exclude evidence that runs afoul of Rule 26(a) or (e)—Rule 37(c)(1) authorizes appropriate

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sanctions ‘[i]n addition to or instead of [exclusion].’” Merchant v. Corizon Health, Inc.,

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993 F.3d 733, 740 (9th Cir. 2021) (quoting Fed. R. Civ. P. 37(c)(1)). “Rather, the rule is

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automatic in the sense that a district court may properly impose an exclusion sanction

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where a noncompliant party has failed to show that the discovery violation was either

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substantially justified or harmless.” Id.

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Petitioner has failed to demonstrate that disclosure for any affirmative testimony

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was substantially justified or harmless. To the extent Dr. Favaro’s opinions exceed the

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scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s

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ORDER – 7

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ability to prepare for the evidentiary hearing. The Court will not infer that the violation is

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harmless from Respondent not deposing one expert to be definitive that Respondent would

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not have deposed Dr. Favaro if properly disclosed as an affirmative expert witness.

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Similarly, in light of the lengthy discussions about experts during the telephone conference,

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Petitioner cannot reasonably maintain that the knowledge about experts did not arise until

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December 2, 2024. See Dkt. # 36 at 2. Therefore, the Court concludes that sanctions are

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warranted because Petitioner has not shown that the discovery violation was substantially

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justified or harmless.

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The Court observes that Dr. Favaro’s testimony is important to resolving this matter

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on the merits, but the Court still finds that sanctions are warranted in this matter.

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Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely

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to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or

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rebut another expert’s disclosure merely because [the expert] also has also offered some

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proper rebuttal [evidence].” Theoharis, 2014 WL 3563386, at *3.

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In accordance with this decision, the Court directs Petitioner to articulate what

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Petitioner believes is true rebuttal testimony. Petitioner will provide this statement to

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Respondent by no later than January 4, 2024 at 12:00 pm (PST).

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ORDER – 8

V.

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For the reasons stated above, the Court GRANTS in part and denies in part
Respondent’s Motion to Exclude. Dkt. # 29. The Court excludes any of Dr. Favaro’s
testimony or portions of the report from that exceed the scope of rebuttal testimony for
Respondent’s affirmative defense. The Court directs Petitioner to provide Respondent
an articulation of Dr. Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm
(PST). The Court will address Petitioner’s objections to proposed exhibits in a forthcoming
order.
Dated this 3rd day of January, 2025.

A

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The Honorable Richard A. Jones
United States District Judge

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CONCLUSION

ORDER – 9