Judge Richard Andrews recently denied a defendant’s motion to strike portions of two expert reports that were served after the deadline for opening expert reports. Judge Andrews recognized that the two reports at issue “were due with the opening round of reports [but] are the sorts of reports that are often not due until the second round of reports.” Warner Chilcott Co., LLC v. Zydus Pharmas. (USA) Inc., et al., C.A. No. 11-1105-RGA, Order at 1 (D. Del. Oct. 24, 2013). Thus, the plaintiff’s service of the reports in question with the second round of reports was excusable because “Plaintiff made a mistake. There is no evidence of bad faith. When the matter was brought to Plaintiff’s attention (which Defendant did not seem to be in any hurry to do . . .) Plaintiff, while not acknowledging error . . . appeared to respond appropriately to Defendant’s complaint in seeking to understand what was necessary to alleviate any prejudice to Defendant.” Id. By contrast, Judge Andrews found Defendants’ actions did not support the motion to strike: “Defendant appears, however, to have understood that it had gained a tactical advantage, and, instead of working with Plaintiff to come up with a workable plan, decided to press home its advantage with the instant motion. In my opinion, that approach was a mistake.” Id. Accordingly, Judge Andrews denied the motion to strike and refused to continue the trial because “[t]he Third Circuit prefers trials on the merits, and it should still be possible to have one.” Id. at 1-2.
Judge Andrews further noted that “Defendant seems to have a back-up plan,” referring to Defendant’s request to file expert reports on secondary conditions as an alternative to the motion to strike. Id. at 2. Judge Andrews therefore ordered the parties to “meet and confer as soon as possible and come up with a plan that will keep this case on track for the scheduled trial,” and further ordered that Delaware counsel should “actively participate in the meet and confer(s).” Id.
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