Can an expert witness be excluded for failure to submit a complete list of publications on time for the expert report? The judge says it depends on whether or not it creates potential prejudice to the other party.
An animal trap manufacturer brought a declaratory judgment action against a patent holder, seeking a finding of invalidity and non-infringement of a patent for a raccoon trap. The manufacturer’s accused device infringed on the patent under the doctrine of equivalents.
District Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri held that the failure of animal trap expert to disclose some publications he authored in the previous 10 years didn’t necessitate he be stricken as an expert.
In this case, the patent involved a two-way trigger and latch system which related to a “dog-proof” raccoon trap called the “Coon Dagger.” The trap included housing with a restraint that’s activated the trigger and latch to prevent bait theft. The two-way trigger system catches a raccoon when it pushes down or pulls up on the trigger. Bait theft—where the raccoon gets the bait but isn’t captured—is all but eliminated since the trap catches the raccoon coming or going.
The patent holder sought to strike the manufacturer’s expert in this case. First, the patent holder contended that the expert failed to provide a written report that complied with Fed.R.Civ.P. 26(a)(2) because he didn’t provide a list of all of the publications he had authored in the previous 10 years, as required by Fed.R.Civ.P. 26(a)(2)(B). In addition, the manufacturer’s expert didn’t provide his incomplete list of publications until two months after he gave his report and on the eve of his deposition.
In response, the manufacturer argued that the trapper expert fully complied with Rule 26(a)(2)(B). It stated that the expert’s initial report set forth his opinions and their support, as well as his qualifications. The expert was the editor for various trapping magazines and was the author of numerous articles relating to trapping, both of which were in the initial report.
The manufacturer claimed that by indicating that the trapper expert was the author of articles related to the trapping industry, the patent holder was on notice that these publications existed at the time of his initial report. The manufacturer claimed that this provided the patent holder with the opportunity to investigate the trapper expert’s articles and to mitigate any alleged damage by asking the manufacturer for more information about those publications.
The manufacturer also said that any untimeliness in disclosing the list of articles was justified because the list of articles was unavailable at the time of the trapper expert’s initial report. However, the list was provided to opposing counsel as soon as it was available prior to the trapper expert’ deposition.
The manufacturer also maintained that the patent holder wasn’t prejudiced by the alleged untimeliness of the trapper expert’s list of publications because it was on notice that the publications existed, and the patent holder was provided with the list prior to the expert’s deposition. The manufacturer also asserted that the patent holder knew the trapper expert had written trapping-related articles when it received his initial report, had the list of publications prior to his deposition, and had a copy of at least one particularly-relevant article authored by the trapper expert at his deposition. Even so, the manufacturer emphasized that the patent holder didn’t ask the expert about the substance of any of his articles on the list or whether any relevant publications were omitted from the list. Instead, the trapper told the patent holder that he had excluded editorial articles from the list that were his regular monthly inclusions to his own magazine. He testified that he “felt it not necessary to include those” in light of the number of editorials he wrote. The manufacturer claimed that these articles didn’t relate to his qualifications as a witness and, as such, weren’t necessary to include, and didn’t prejudice the patent holder.
Judge White wrote in his opinion that there is an obligation of each party to supplement information included in an expert’s report or given during an expert’s deposition if the party learns that “in some material respect the disclosure or response is incomplete or incorrect.” However, the judge went on to say that one of the things that the court can consider when determining whether to exclude expert testimony is “the potential prejudice created by permitting use of the expert testimony at trial or on a pending motion.” Here, the patent holder didn’t demonstrate any prejudice by allowing the trapper expert to serve as an expert, even though he didn’t disclose some of his editorial articles.
The patent holder didn’t identify any questions that it would have asked of the expert or any articles that were in conflict with his proposed expert testimony. In addition, the judge held that striking the expert’ testimony for his failure to provide some articles that looked to be at best marginally relevant to case was too severe.
As a result, Judge White denied the patent holder’s Daubert motion based upon the animal trap expert alleged noncompliance with Rule 26.