When it comes to supplemental expert reports, how late is too late?
In a case that's set for trial next month, Judge Andrews recently addressed the parties' objections to a number of orders and R&Rs issued by Magistrate Judge Burke. In one of those orders, Judge Burke granted a motion to exclude some of the plaintiffs' damages calculations as erroneous and unreliable.
The plaintiffs objected, and in the meantime, they served a supplemental damages report attempting "[t]o correct the flawed analysis" excluded by Judge Burke.
Judge Andrews not only overruled the objections, but also found that the supplemental report was submitted too late:
The report was filed less than three weeks before trial. . . . This is not enough time to depose Dr. Vander Veen, draft and serve a supplemental report in response to Dr. Vander Veen's new opinion, and possibly move to exclude Dr. Vander Veen's opinion under Daubert. . . . The time for Shure to attempt to amend its legally flawed damages opinion has come and gone. Thus, Shure's objection is overruled, and Shure may not rely on the supplemental report at trial.
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