Years ago, Judge Stark added language to his form scheduling order to resolve a common dispute: can an expert submit a declaration in support of summary judgment?
The language requires the parties to agree in advance, at the start of the case, whether they will permit this:
Expert Report Supplementation. The parties agree they [will] [will not] [CHOOSE ONE] permit expert declarations to be filed in connection with motions briefing (including case-dispositive motions).
Judge Stark has since moved up, but several D. Del. judges still use this language in their scheduling orders, including Judges Noreika, Hall, Burke, and Hatcher. Beyond that, the language is still floating around out there in other cases, including cases that were re-assigned from Judge Stark.
So I thought it was worth noting that Judge Burke issued an opinion recently regarding what happens when parties elect to permit expert declarations in connection with summary judgment briefing.
In Speyside Medical, LLC v. Medtronic Corevalve, LLC, C.A. No. 20-361-GBW-CJB (D. Del.), the defendant claimed that the plaintiff's expert offered new opinions in his reply report. D.I. 437 at 1. Defendant offered new opinions from their own expert in response—and submitted them in a supplemental report offered in opposition to a Daubert motion, filed long after the deadline for expert report supplementation.
Plaintiff moved to strike, arguing the supplemental report was late and offered new opinions. D.I. 401. Defendant did not dispute that the opinions were new, but relied on the language above that permits "expert declarations to be filed in connection with motions briefing." D.I. 437.
The Court agreed with defendant, and held that such a report is fine under the language of the scheduling order:
ORAL ORDER: The Court, having reviewed Plaintiff's motion to strike . . . hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) The Scheduling Order allows supplemental expert declarations to be filed along with motions briefing (including case-dispositive motions). . . . ; (2) Defendants say that Dr. Brecker's supplemental report was intended to align with that portion of the Scheduling Order. . . . ; (3) The Court will treat the report as such a declaration and permit it. It makes sense to do so because in the report, Dr. Brecker, inter alia, reacts to new, relevant comments made by Plaintiff's expert Dr. Buller during his expert deposition (comments that further shed light on the contours of Dr. Buller's view regarding the meaning of certain claim terms). Dr. Brecker's supplemental views regarding such comments may be relevant to the summary judgment process.
D.I. 448.
Plaintiff then filed a letter seeking "clarification" that the Court did not mean to permit the expert to testify to the new opinions at trial:
[Plaintiff] seeks clarification that the Court’s Order means that the opinions in [the] Supplemental Expert Report may be considered as a declaration in support of Medtronic’s pending Daubert motion, but that in accepting those opinions for that purpose, the Court is not permitting Medtronic to offer those same opinions in [the] supplemental report at trial. . . . Of course, should the Court permit those opinions to be used for any other purpose, [plaintiff] will want the opportunity to respond.
D.I. 451 at 1. Defendant responded by relying again on the scheduling order language.
The Court agreed, and made clear that the expert can testify as to his new opinions at trial:
ORAL ORDER: The Court, having reviewed the parties' letters regarding Plaintiff's request for clarification of the Court's December 18, 2023 Oral Order, (D.I. 451; D.I. 452), hereby ORDERS that for the reasons set out in Defendants' letter, Plaintiff's requested "clarification" is DENIED. If there is a need for Defendants to do so, they may have Dr. Brecker present the opinions in his Supplemental Report at trial.
D.I. 458.
The holding suggests that if you have language in your scheduling order permitting an expert to submit a declaration in support of a motion, and the expert submits one, then the expert can testify as to the contents of that declaration at trial, even if it includes new opinions responding to the opposing expert's opinions offered in a reply report or at deposition.
Given how often parties try to supplement reports after the deadline, I expect this will be useful to at least some readers—assuming you have the right language in your scheduling order.
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