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Thermo v. Bestop, Inc.

United States District Court, E.D. Michigan, Southern Division

June 10, 2019

WEBASTRO THERMO & COMFORT NORTH AMERICA, INC., ET AL., Plaintiffs,
v.
BESTOP, INC., Defendant.

          PAUL D. BORMAN DISTRICT JUDGE

          OPINION AND ORDER

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         This is a patent case. Before the Court is Plaintiff's Motion to Strike Defendant's Non-Report Expert Disclosure and Exclude Testimony of its Putative Experts [Doc. #126]. For the reasons and under the terms discussed below, the motion is GRANTED.

         I. BACKGROUND

         Under the Court's amended scheduling order [Doc. #99], expert disclosures were due on October 2, 2018. Plaintiff served two expert reports on that date. Defendant Bestop, Inc. (“Bestop”) served no expert reports, but on October 3, 2018 served a “Non-Report Witness Expert Disclosures Pursuant to Fed.R.Civ.P. 26(a)(2), ” identifying two proposed “lay experts, ” William H. Haberkamp and Eric D. Getzschman. Bestop indicated in its disclosure that “no written expert report is required.”

         II.DISCUSSION

         Fed. R. Civ. P. 26(a)(2) governs discovery practice related to expert witnesses. Rule 26(a)(2)(A) provides that “[i]n addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Rule 26(a)(2)(B), which would apply to retained experts, provides:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.”

         Rule 26(a)(2)(C)[1] governs witnesses who are not required to produce a report, and reads as follows:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

         Defendan Bestop contends that Messrs. Haberkamp and Getzschman fall within Rule 26(a)(2)(C), and are therefore not required to produce written reports, because they are “lay” or “percipient” experts. Defendant bears the burden of establishing that these two witnesses are not required to produce a report. EEOC v. Kaplan Higher Ed. Corp., 748 F.3d 749, 752 (6th Cir. 2014); Advent v. Covidien, Inc., 114 F.R.D. 547, 559 (E.D. Mich. 2016).

         In Fielden v. CSX Transportation, Inc., 482 F.3d 866 (6th Cir.2007), the Sixth Circuit held that a treating physician could offer expert testimony without providing a written report, so long as the testimony related to his opinions as to causation ...


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