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Precision Fabrics Group, Inc. v. Tietex International, Ltd.

United States District Court, D. South Carolina

February 25, 2018

PRECISION FABRICS GROUP, INC., Plaintiff,
v.
TIETEX INTERNATIONAL, LTD., Defendant. PRECISION FABRICS GROUP, INC., Plaintiff,
v.
TIETEX INTERNATIONAL, LTD., Defendant.

          MEMORANDUM ORDER

          THOMAS D. SCHROEDER, DISTRICT JUDGE

         These patent infringement actions are before the court on several pretrial motions filed by the parties. Precision Fabrics Group, Inc. ("PFG") alleges that Tietex International, Ltd. ("Tietex") infringed its U.S. Patents Nos. 8, 796, 162 ('162 Patent) and 8, 501, 639 ('639 Patent) for flame-retardant technology for fabrics.[1] The background has been set forth in multiple prior opinions and will not be repeated here. (Docs. 57 (claim construction) and 152 (summary judgment)).

         The court has considered the briefing and attachments for all pending motions, which are extensive. An all-day hearing on the motions was held on February 23, 2018. To the extent the parties at the hearing raised specific evidentiary objections not addressed herein, the court relies on its rulings and reasons articulated during the hearing. The purpose of this memorandum is to resolve the bulk of the remaining objections, articulate the court's reasoning, and provide the parties sufficient information to resolve their disputes as to the crafting of proposed jury instructions. Any motion in limine not specifically addressed below will be addressed shortly by separate order.

         A. Tietex Motion in Limine No. 1 (Exclude Opinion of Dr. Bhat) (Doc. 205)

         The central dispute in this case relates to claims in PFG's patents that require the use of an "intumescent." The court has construed the term "intumescent" as describing "a substance that swells and chars upon exposure to heat or flame." (Doc. 57 at 20- 21.) The parties have stipulated that Tietex's accused coating, SV-X41, chars under exposure. Thus, the disputed issue for trial as to this claim is whether it "swells" when so exposed.

         Tietex moves to exclude the opinions of PFG's retained expert witness, Gajanan S. Bhat, Ph.D., on several grounds under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In short, Dr. Bhat opines that SV-X41 swells when exposed to heat or flame and does so in several applications, whether equal to or in excess of that claimed to be used by Tietex in its products. Tietex contends that Dr. Bhat is not an expert in chemistry and has "extremely limited experience with intumescent coatings, " which renders his testing unreliable because he used a flawed methodology in testing to determine whether the SV-X41 coating of Tietex swells upon exposure to heat or flame. (Doc. 206 at 2.) Tietex faults Dr. Bhat for conducting his testing on what its expert, Dr. Richard Horrocks, contends is an excessive amount of SV-X41 and for using a substrate (namely, aluminum) that Dr. Horrocks contends is not inert but rather interacts with the coating to cause swelling. PFG responds that Dr. Bhat is well-qualified to measure the SV-X41 coating upon exposure to heat or flame, that the court has already addressed challenges to the amount of SV-X41 tested by permitting Dr. Bhat to conduct additional testing of lesser amounts of the coating, and that Tietex's challenge to the use of aluminum is tardy (not having been raised as to Dr. Bhat's earlier testing with aluminum, about which he was deposed without criticism) and insufficient to render the results unreliable.

         The court has devoted significant time and resources issues arising out of the parties' fight over testing in this case. The court has previously found that when Tietex appeared to concede in the course of this litigation that Dr. Bhat's testing showed that SV-X41 swells when applied in certain (Tietex claims larger) doses, Tietex shifted the emphasis of its defense and claimed that lesser applications in the amount actually used on Tietex's products (what its expert, Dr. Horrocks, characterizes as "thermally thin" applications) do not swell when exposed. (Doc. 174 at 8.) In response, Dr. Bhat tested SV-X41 in amounts that PFG claims replicates those used by Tietex in its applications. In doing so, Dr. Bhat tested the coating on an aluminum foil substrate. Tietex now contends that aluminum is flawed as a substrate because it could interact with the SV-X41 to cause swelling.

         The court need not engage in an extended Daubert analysis. Suffice it to say that Tietex's position is based on the opinion of Dr. Horrocks, which a jury may or may not find credible. It is also rebutted by Dr. Bhat's testing results. Moreover, as PFG notes, Dr. Horrocks's opinion is subject to criticism because he failed to challenge Dr. Bhat's previous use of an aluminum pan as a substrate in earlier testing.[2] Therefore, it is a factual matter for the jury. For these reasons, the court declines to find that this challenge renders Dr. Bhat's testing and results unreliable, and the motion to exclude Dr. Bhat and his opinions will be denied.

         B. Tietex Motion in Limine No. 3 (Prior Court and IPR Proceedings) (Doc. 209)

         Tietex moves to preclude PFG from introducing or using any evidence relating to (1) prior disputes in the litigation; (2) outcomes of prior proceedings in this case; and (3) the determinations of the Patent Trial and Appeal Board ("PTAB") during inter partes review ("IPR") proceedings. (Doc. 210 at 1.) PFG responds that it does not intend to offer evidence of prior disputes in the litigation or outcomes of prior proceedings in this case, as noted in grounds (1) and (2) above, except that it claims that the court's denial of Tietex's proposed claim construction should be admissible on the issue of willfulness. (Doc. 243 at 2-3.) Therefore, the court grants this motion as to grounds (1) and (2) above. For the reasons stated in PFG's motion in limine number 5, the court grants Tietex's motion as to ground (2) without prejudice to PFG's right to introduce evidence regarding the court's denial of Tietex's proposed claim construction for the limited purpose of establishing willfulness. Of course, the parties are not precluded from relying on their opponent's responses to discovery, absent other objection.

         As to ground (3), PFG agrees that the determinations of the IPR proceedings generally should not be admitted. (Doc. 243 at 4.) Tietex contends that while the PTAB proceedings and their outcome are irrelevant, the fact Tietex filed its IPR application for the '639 patent (and expended substantial resources doing so) is relevant to rebut claims that any alleged infringement was willful. (Doc. 249 at 4.) PFG responds that the IPR petition should be excluded because it is irrelevant and would be confusing to the jury due to the PTAB's standards for such proceedings. (Doc. 243 at 10.) Because Tietex's motion is directed to excluding the outcomes of the PTAB proceedings, the court need not address its contention that it should be able to introduce its IPR petition.[3]

         The court therefore grants Tietex's motion as to ground (3) Unless permitted elsewhere in this order, the parties shall not, directly or through their witnesses, refer to or seek to introduce the PTAB proceedings, absent permission from the court.

         C. PFG Motion in Limine No. 1 (Non-Infringing Alternatives) (Doc. 183) & Motion to Strike Tietex's Supplemental Interrogatory Response (Doc. 228)

         PFG moves to preclude Tietex from introducing evidence regarding alleged non-infringing alternatives (to oppose PFG's lost-profits claim) on the grounds that Tietex failed to timely disclose them in response to PFG's interrogatories directed precisely to that subject. (Doc. 184 at 5.)[4] PFG also moves to strike as untimely Tietex's second supplemental response to PFG's Interrogatory No. 7, which Tietex filed contemporaneously with its response to PFG's motion. (Doc. 228.)

         This dispute begins with PFG's second set of interrogatories, which PFG served on Tietex on August 19, 2014. PFG specifically requested, among other things, that Tietex "[i]dentify and describe any fabrics that Tietex contends are actual or potential non-infringing alternatives to any inventions claimed by any of the claims of U.S. Patent 8, 501, 639 for use as filler cloth in the construction of a mattress or otherwise." (Doc. 184-1 at 7.)[5] Nearly four months later, Tietex responded with objections to the scope of the interrogatory and a statement that its own accused products are non-infringing alternatives. (Id. at 7-8.) The Magistrate Judge properly found that by its delay, Tietex had waived its objections. (Doc. 90 at 6-7.)

         Approximately one year later, on December 9, 2015, Tietex served an amended response. By then, fact discovery had been closed for approximately six months, and expert discovery had been closed over one month.[6] In this updated response, Tietex stated:

The term "any fabrics that Tietex contends are actual or potential non-infringing alternatives" encompasses the entire universe of fabrics manufactured by Tietex or others which do not satisfy each and every claim limitation of at least one valid claim in the subject patent. For example, there are many different flame retardant fabrics that can be used in the environments in which the fabrics described in the patents-in-suit could be used. For example, each of Tietex's products that have been accused of infringing the patents-in-suit patent are non-infringing alternatives to the products described and claimed in the patents-in-suit. As other examples, alternative fabrics also include those flame retardant fabrics made by competitors of Tietex and PFG for use in mattresses and for other products. Some of these alternative fabrics include fabrics sold by Hanes, PGI, PCC, DuPont, Soltex, Johnson Textiles, Performance Fabrics and Fiber, Precision Textiles, PCC, Freudenberg, and Pratrivero. PFG is aware of these fabrics as indicated by internal PFG documents produced to Tietex during the course of this action. In addition, there may be other alternative non-infringing fabrics that may be presented by Tietex to the Court, but those have not specifically been determined as of yet. Tietex reserves the right to supplement this interrogatory response as such decisions are made.

(Doc. 184-2 at 6.) This response fails to identify any specific fabric by any manufacturer. Prior to the filing of the present motion in limine, PFG never objected to Tietex's amended response or moved for an order to compel a further response. Nor did Tietex seek to amend its response with any further specificity.

         Tietex now seeks to offer at trial evidence of several noninfringing alternatives: (1) fabrics sold by other competitors in the market; (2) a non-coated filler cloth fabric developed by Tietex during the course of the litigation; and (3) a needle-punch fabric sold by PFG. (Doc. 190-10 at 3-6.) Tietex offers a two-pronged defense. First, it contends that its discovery responses were proper and that the existence of all non-infringing alternatives were nevertheless "made known" to PFG through evidence disclosed in discovery. (Doc. 262 at 11-12.) Second, Tietex contends that acting "out of an abundance of caution, " it has cured any notice problem because it served a lengthy second supplemental interrogatory response on July 21, 2017, which, among other things, specifically identified "PFG's needlepunch flame retardant filler cloth" and Tietex's line of "stitchbonded, flame retardant filler cloth that does not use a flame retardant coating" as available non-infringing alternatives. (Doc. 190 at 11; Doc. 190-10 at 3-6.) This supplemental response indicates that Tietex intends to introduce evidence and testimony at trial of "these and all other non-infringing alternatives it has identified" through its damages expert, Dr. Alford. (Doc. 190-10 at 5.) Tietex contends that PFG was aware of the evidence of non-infringing alternatives since 2014 and that to grant PFG's motion would cause "the trial of this case [to] proceed based on invented 'facts' that bear no relation to reality." (Doc. 190 at 21.)

         In order to recover lost profits, the patent owner must establish "a causal relation between the infringement and its loss of profits." Ericsson, Inc. v. Harris Corp., 352 F.3d 1369, 1377 (Fed. Cir. 2003) (quoting BIC Leisure Prods., Inc. v. Windsurfing Int'l, Inc., 1 F.3d 1214, 1218 (Fed. Cir. 1993)). The patentee must demonstrate "a reasonable probability that 'but for' the infringing activity, the patentee would have made the infringer's sales." Id. (quoting Crystal Semiconductor Corp. v. TriTech Microelecs. Int'l, Inc., 246 F.3d 1336, 1353 (Fed. Cir. 2001)). Once the patentee establishes the reasonableness of this inference, the burden shifts to the accused infringer to demonstrate that the inference is unreasonable for some or all of the lost profits. Micro Chem., Inc. v. Lextron, Inc., 318 F.3d 1119, 1122 (Fed. Cir. 2003) (citing Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1545 (Fed. Cir. 1995)) . An accused infringer may oppose a lost-profits claim by establishing the existence of available non-infringing alternatives within the relevant market. See Grain Processing Corp. v. American Maize-Prods., 185 F.3d 1341, 1350-51 (Fed. Cir. 1999) .

         Interrogatories are governed by Federal Rule of Civil Procedure 33. "Contention interrogatories . . . serve an important purpose in helping to discover facts supporting the theories of the parties" and to "narrow and sharpen the issues thereby confining discovery and simplifying trial preparation." Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272, 1280 (Fed. Cir. 2012) (citing Fed.R.Civ.P. 33 advisory committee's note (1970 Amendment, subdivision (b)) . Courts have recognized that answers to contention interrogatories may evolve over time, id., and "an answer to an interrogatory does not conclusively bind the answering party in all instances, " Marcoin, Inc. v. Edwin K. Williams & Co., 605 F.2d 1325, 1328 (4th Cir. 1979) . See also Intellect Wireless, Inc. v. T-Mobile USA, Inc., 735 F.Supp.2d 928, 935 n.5 (N.D. Ill. 2010) ("[C]ourts, particularly in patent suits, generally still do not treat responses to contention interrogatories as binding." (collecting cases)).

         However, a party has an ongoing duty to supplement or correct its disclosure or response "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1)(A); Woods, 692 F.3d at 1280. The collateral disclosure of information during the discovery process may satisfy this requirement, provided that the "information that would normally be contained in a supplemental discovery response [be] in such a form and of such specificity as to be the functional equivalent of a supplemental discovery response; merely pointing to places in the discovery where the information was mentioned in passing is not sufficient." L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc., 125 F.Supp.3d 1155, 1169 (D. Colo. 2015) (citing Jama v. City and County of Denver, 304 F.R.D. 289, 298-99 (D. Colo. 2014)).

         Rule of Civil Procedure 37 provides that a party who fails to properly supplement its interrogatory response "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." Fed.R.Civ.P. 37(c) (1) . In determining whether the party's failure to make the required disclosures was substantially justified or harmless, the court may consider the following factors:

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). The party that failed to disclose the information bears the burden of establishing that the nondisclosure was either harmless or substantially justified. Id. (citing Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014)). With this legal landscape in mind, the court turns to the question at hand.

         PFG's interrogatory asked Tietex to "identify and describe" all fabrics it contends were actual or potential non-infringing substitutes. (Doc. 184-1 at 7.) This contention interrogatory sought to learn whether Tietex would contend that PFG's alleged damages are limited, and if so, by what non-infringing products. Such a determination is fact-specific and not subject to generalities. SynQor, Inc. v. Artesyn Techs., Inc., No. 2:07-CV- 497-TJW-CE, 2011 WL 3625036, at *10-11 (E.D. Tex. Aug. 17, 2011). Having waived any objection to the scope of this interrogatory as a result of its untimely response, Tietex had a duty to respond with specificity and to timely supplement. (Doc. 90 at 6-7.) Not until after the conclusion of both fact and expert discovery did Tietex amend its original response, and then only to provide the names of several competitors that allegedly sell non-infringing alternatives. Tietex did not disclose any fabric with any specificity, nor did it cite to the record where any fabric had been identified. (See Doc. 190-10.) This response was clearly inadequate and failed to comply with the disclosure requirements of Rules 33 and 26(e) . Yet, PFG did not seek judicial intervention to have the response declared inadequate or to compel a more complete description.

         In light of the discovery history of this case, the court finds that as to fabrics sold by competitors that are referenced in the report of Tietex's damages expert, Dr. Alford, Tietex's failure to previously disclose such evidence was harmless, as PFG cannot reasonably claim surprise. Neither party disputes the existence of non-infringing alternatives within at least a portion of the relevant market.[7] In his expert report and deposition testimony, Dr. Alford sought to respond to claims regarding market segmentation raised by PFG's damages expert. (Doc. 237-4 at 5-10.) Among other things, Dr. Alford testified that his opinions on damages rested on the conclusion that non-infringing alternatives were sold by several competitors within the market, including Dupont, Hanes, Inman Mills, Pratrivero, HDK, and PCC. (Doc. 190-3 at 3; Doc. 190-4 at 4-7.) PFG had ample opportunity to cross-examine Dr. Alford regarding the basis of this opinion. PFG failed to take any action to cure any prejudice arising from the disclosure, or lack thereof, of such information for over two years.

         The evidence is important, as it relates directly to the calculation of damages at trial, which favors exclusion. See S. States, 318 F.3d at 598-99. Furthermore, Tietex was not substantially justified in failing to adequately respond to PFG's interrogatory request after the close of discovery. See Id. Nevertheless, exclusion is not warranted where the evidence of non-infringing alternatives sold by other competitors remains a central dispute within this case and PFG has been aware of Tietex's intention to introduce this specific evidence for well over two years.[8]

         Therefore, PFG's motion to exclude evidence of non-infringing alternatives sold by competitors in the market is denied as to any products whose sales are referenced in Dr. Alford's expert report or deposition testimony, but otherwise granted as to other available non-infringing alternatives sold by competitors apart from PFG and Tietex. See ZiiLabs Inc. v. Samsung Elecs. Co., No. 2: 14-cv-203-JRG-RSP, 2015 WL 6690403, at *3 (E.D. Tex. Nov. 2, 2015) (granting in part motion to strike references to a noninfringing alternative not raised in expert's original report where the record indicated that the defendant could have disclosed the information within its interrogatory response, but declining to exclude other non-infringing alternatives disclosed in direct response to statements regarding the availability of those noninfringing alternatives in opposing party's expert report) . To be sure, while Tietex is not precluded from relying on the alleged products represented by Dr. Alford's computations for alleged noninfringing products, it nevertheless retains the burden of establishing a factual predicate that those products are in fact non-infringing.

         With regard to the two non-infringing alternatives disclosed in Tietex's second amended response served in response to PFG's motion in limine - PFG's needle-punch flame retardant filler cloth, and Tietex's line of stitchbonded, flame retardant filler cloth that does not use a flame retardant coating - Tietex cannot reasonably contend that its discovery responses were proper under the circumstances. Its contention that these alternatives were covered by the general description contained in its first amended response is wholly without merit. (Doc. 262 at 9.) Disclosing generally the existence of potential non-infringing alternatives in deposition testimony during the final days of fact discovery or expert discovery does not "make known" to PFG that Tietex intends to contend these products constitute non-infringing alternatives. This is particularly true where neither was disclosed in any of Tietex's expert reports or in Tietex's first amended response. See Woods, 692 F.3d at 1282 (affirming exclusion of attempted supplement where defendant failed to answer and supplement responses to contention interrogatory and disclosed of prior art without additional explanation on the final day of the scheduled discovery period); cf. L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc., 125 F.Supp.3d 1155, 1168-69 (D. Colo. 2015) (holding that supplemental disclosure was not necessary, where information was disclosed in deposition testimony and the defendant's expert report). At a minimum, Tietex should have disclosed the existence of these non-infringing alternatives no later than in its first amended response after the close of discovery in December of 2015.

         Therefore, the court must determine whether Tietex's failure to timely disclose these non-infringing alternatives was substantially justified or harmless. Fed.R.Civ.P. 37(c) (1) . PFG points to the very late disclosure and argues that exclusion is proper because Tietex has taken a position inconsistent with its prior discovery responses and its own damages analysis. (Doc. 202 at 11-15.)[9] Accordingly, PFG contends, Tietex's failure to timely supplement cannot be considered either harmless or substantially justified. (Id.)

         Tietex argues that even if the court finds its disclosure to be untimely, the evidence should not be excluded because PFG would not be prejudiced. (Doc. 190 at 21.) Tietex contends that PFG has been on notice that such evidence would be presented and slept on its rights to compel more complete responses or seek additional discovery, and Tietex says it remains willing to provide witnesses for testimony. (Doc. 190 at 13-14.) According to Tietex, PFG has been aware that Tietex's non-coated filler cloth is a non-infringing alternative since June 5, 2015, when Tietex's Rule 30(b) (6) deponent, Robert Wallace, testified that Tietex had developed the fabric and was in the process of commercializing it within the market for flame retardant filler cloth. (Doc. 190 at 6; Doc. 190-5 at 3-7.) In addition, Tietex notes that PFG questioned Tietex's Chief Executive Officer, Martin Wildeman, about this developmental product as well. (Doc. 190-6 at 3-4.) Tietex also claims it provided PFG with samples of this product in March of 2016 (Doc. 190-7), and regularly supplemented its sales information, per the parties agreement, which reflected that Tietex no longer sold the accused products and included figures for this new fabric (Doc. 190 at 7) .[10] Similarly, Tietex notes that PFG's damages expert, Joel Wacek, identified non-infringing alternatives during his deposition, including needle-punch fabric as well as woven and spun-lace fabrics. (Doc. 190-2 at 1-4, 10.) PFG responds in part that the records relating Tietex's product at issue were largely buried in Tietex's production of hundreds of thousands of pages, and that the production of sales records made no effort to direct any attention to the new product or the fact that Tietex would contend it was an available non-infringing alternative.

         Having carefully considered the Southern States factors, the court concludes that the failure to disclose these two products as allegedly non-infringing alternatives is neither harmless nor substantially justified. While it may be one thing to say that PFG may have been on notice of the existence of these two alternatives, it is quite another for Tietex to seek to incorporate it into its damages analysis as a non-infringing alternative well after the close of all fact and expert discovery and on the eve of trial. This is especially so where Tietex itself concedes it was aware of its intention to rely on these two products as noninfringing alternatives for over two and one-half years yet made absolutely no effort to seek to amend its damages expert's report or its interrogatory responses, or even write a letter to opposing counsel to provide such notice.

         As noted above, establishing the existence of available non-infringing alternatives involves a highly fact-specific inquiry into the product and relevant market at issue. The relevant question in determining prejudice is not "whether [a] plaintiff[] knew of the existence of the [non-infringing alternatives] and should have guessed they would be put forth as an alternative, " but rather "whether [a] plaintiff[] will be prejudiced by defendant's failure to disclose them as such during discovery." Parker-Hannifin Corp. v. Champion Labs., Inc., No. 1:06-CV-2616, 2008 WL 1843922, at *8 (N.D. Ohio Apr. 22, 2008) (emphasis added), modified on clarification, No. 1:06-CV-2616, 2008 WL 3166318 (N.D. Ohio Aug. 4, 2008) . See also SynQor, 2011 WL 3625036, at *10-11 (denying motion for new trial based on exclusion evidence of non-infringing alternatives that were disclosed after the close of fact discovery, relying in part on the fact the party was deprived of the opportunity to conduct the "highly technical discovery" required to assess the alleged non-infringing alternatives).

         Here, Tietex's failures are evident with respect to its attempt to introduce this testimony through its damages expert, Dr. Alford. Dr. Alford issued his expert report on August 27, 2015, nearly three months after the close of fact discovery. (Doc. 202-3 at 2.) In that report, he opined that PFG and the other competitors in the market would have captured all of Tietex's alleged infringing sales based on their respective market shares. (Id. at 8.) While Dr. Alford explicitly relies on the existence of non-infringing alternatives provided by competitors within the market, he assumes Tietex would have completely exited the market. (Id.) Tietex has provided no evidence that Dr. Alford considered these two non-infringing alternatives in reaching his opinion, nor does the court find any evidence in the record to support his contention. Tietex attempts to explain this omission by claiming that "Dr. Alford had not fully developed his opinions concerning non-infringing alternatives" at the time of the report and characterizing this opinion as a "secondary" calculation designed to demonstrate the flaws within Wacek's analysis. (Doc. 262 at 17 n.6.)[11] Neither explanation is credible or acceptable. If PFG was in fact placed "on notice" of Tietex's intention to raise such contentions at the conclusion of fact discovery, surely Tietex's own expert would have been aware of such contentions as well. If not, he should have been made aware of it.[12] Tietex offers no explanation for its failure to seek to supplement Dr. Alford's report. See Fed.R.Civ.P. 26(a)(2)(D), (E).

         At this late stage in the litigation, PFG has limited ability to cure the surprise arising from this violation. Even though Tietex disclosed this information several months in advance of the trial, the only available cure to PFG at this point would be to permit PFG to conduct additional discovery on the eve of trial, which would cause significant burden and disruption, or for the court to continue trial, which would result in a significant disruption. See S. States, 318 F.3d at 598 (noting granting a continuance "would have significantly disrupted the trial, because witnesses from distant places had testified and if the case were continued and tried again, much of the parties' trial preparation would be rendered obsolete"). This prejudice is exacerbated by Tietex's contention at the hearing that it seeks to present evidence that it could ...


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