United States District Court, D. Kansas
MEMORANDUM & ORDER DENYING DEFENDANT'S MOTION
TO STRIKE NEW ALLEGATIONS IN PLAINTIFF'S REBUTTAL EXPERT
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is Defendant's Motion to Strike New
Allegations in Plaintiff's Rebuttal Expert Report. (Doc.
223.) Defendant brings the present motion based on their
assertion that Plaintiff's Rebuttal Expert Report
contains “new and previously undisclosed infringement
allegations.” (Doc. 223, at 1.) Having reviewed the
submissions of the parties, Defendant's motion is
DENIED as more fully set forth below.
this is a patent infringement case, brought pursuant to 35
U.S.C. § 271, et seq. The parties are
competitors in the grain storage cover industry. In its
present motion, Defendant contends that Plaintiff's
rebuttal expert report contains new direct infringement
allegations and photographs that were not timely disclosed.
(Doc. 224, at 1.) For these reasons, Defendant asks in this
Motion that the Court “strike any infringement opinion
testimony relating to these four new sites, as well as the
late-produced photographs purportedly of these sites.”
(Doc. 224, at 8.) In the alternative, Defendant seeks the
Court's leave to submit a responsive expert report. (Doc.
224, at 8.) Plaintiff objects to Defendant's Motion,
arguing that “[t]here is nothing in Mr. Decker's
expert report that is inconsistent with, or ‘new'
to, J&M's long-standing position.” (Doc. 229,
proper rebuttal expert is “intended solely to
contradict or rebut evidence on the same subject matter
identified by another party” in its expert disclosures.
Estate of Hammers v. Douglas Co. Bd. of
Comm'rs, No. 15-7994-DM, 2016 WL 6804905,
at *1 (D. Kan. Nov. 16, 2016) (quoting Fed.R.Civ.P.
26(a)(2)(D)(ii)). Stated another way, rebuttal evidence is
“evidence which attempts to ‘disprove or
contradict' the evidence to which it contrasted.”
Tanberg v. Sholtis, 401 F.3d 1151,
1166 (10th Cir. 2005) (citation omitted). The admissibility
of expert testimony is within the sound discretion of the
courts. United States v. Barton,
731 F.2d 669, 672 (10th Cir. 1984).
argues that Plaintiff “did not identify infringement
allegations specific to these four sites before the Decker
‘rebuttal' expert report.” (Doc. 224, at 2.)
Plaintiff states in its response that it has “always
clearly maintained that because there are no substantial
non-infringing uses, Raven's customers' use and
installation of Raven's internal strapping system (as
evidenced by the invoices produced by Raven) is direct
infringement of J&M's patents.” (Doc. 229, at
3.) To support this argument, Plaintiff references several
documents in which it refers to direct infringement by
Defendant's customers. (Doc. 229, at 3-5.)
Plaintiff contends that Mr. Decker's opinions regarding
direct infringement are not new. (Doc. 229, at 6.) Plaintiff
notes that every single strapping system inspected by Mr.
Decker was previously identified as an occurrence of direct
infringement because they have always held that “each
customer's use/installation of Raven's internal
strapping system is an instance of direct
infringement.” (Doc. 229, at 6.) Plaintiff also states
that all four of the sites named in Mr. Decker's report
were previously identified by the invoices produced by
Defendant during discovery. (Doc. 229, at 6.)
notes that it previously filed two motions to compel asking
Plaintiff to identify the specific sites where it claimed
that there was infringement. (Doc. 224, at 2.)
Defendant's Interrogatory No. 12 asked Plaintiff to
“[i]dentify by name and location each and every site or
place where there is a grain storage system that includes a
Raven product and that you contend infringes any claim of the
‘239 patent or the ‘550 patent.” (Doc.
224-3, at 1.) Plaintiff's answer to that interrogatory
Each sale of a Raven internal strap system (as evidenced by
the sales documents produced (e.g., RavenJMI 8343-8474 and
8491-8828 - Raven invoices listing systems described as
having ‘strap' or ‘integrated straps'),
or which should be produced, by Raven) resulted in an
infringement of the ‘239 Patent and/or the ‘550
(Doc. 229, at 3-4.)
Court has ruled twice that it would not require Plaintiff to
supplement its response to this Interrogatory if it
“intends to advance the theory that every use of
Defendant's system infringes on the patent at
issue…” (Doc. 149, at 4; Doc 120, at 6.)
Plaintiff clearly intends to move forward on with this
theory. With this motion, ...