Judge Farnan: Failure to amend expert report to include opinion testified to at trial results in opinion being stricken from the record
In a post-trial evidentiary opinion of phase I of a bench trial in which defendants asserted patents against plaintiff, Judge Farnan recently determined that certain testimony should be excluded because plaintiff failed to make adequate disclosure pretrial. LG Display Co., Ltd., v. AU Optronics Corp., et al., C.A. 06-726-JJF (D. Del. Feb. 16, 2010). One of plaintiff’s experts offered opinions at trial that were not disclosed in prior expert reports or depositions. Id. at 1. Plaintiff argued that the testimony was proper rebuttal testimony and should be considered, despite not being disclosed until the third day of trial. Id. at 2. Judge Farnan disagreed because plaintiff’s expert had one month to review defendant’s expert before submitting his rebuttal report and then another month before his deposition was taken. Id. at 3. “[Defendant] AUO and its expert were given no advance notice of [plaintiff’s expert’s] testimony, and [plaintiff] made no attempt to amend its expert report prior to allowing [their expert] to take the stand and reveal what [plaintiff] acknowledges were undisclosed, new opinions. In the Court’s view, this is precisely the type of attorney conduct that is prohibited by the Federal Rules of Civil Procedure.” Id. at 4. Judge Farnan also precluded plaintiff from asserting a license defense because plaintiff failed to disclose the defense prior to trial, as required by Federal Rule of Civil Procedure 26(e). Id. at 8.