Perkasie Industries Corp. v. Advance Transformer, Inc.

143 F.R.D. 73, 1992 WL 166042, 1992 U.S. Dist. LEXIS 8326
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 11, 1992
DocketCiv. A. No. 90-7359
StatusPublished
Cited by10 cases

This text of 143 F.R.D. 73 (Perkasie Industries Corp. v. Advance Transformer, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perkasie Industries Corp. v. Advance Transformer, Inc., 143 F.R.D. 73, 1992 WL 166042, 1992 U.S. Dist. LEXIS 8326 (E.D. Pa. 1992).

Opinion

MEMORANDUM

McGLYNN, District Judge.

Presently before the court is a motion by the defendant, Advance Transformer, Inc. (“Advance”), requesting a protective order that would strike plaintiff Perkasie Industries Corp.’s (“Perkasie") supplemental responses to defendant’s expert witness interrogatories. Perkasie’s supplemental responses identified three expert witnesses upon whose testimony it is prepared to rely to establish its damages in this case. Advance maintains that these witnesses should be precluded from testifying at trial due to Perkasie’s failure to comply with the court’s pre-trial scheduling order. For the reasons set forth below, Advance’s motion will be granted.

BACKGROUND

The defendant’s motion arises from an antitrust suit brought by Perkasie against Advance under § 2(a) of the Robinson-Pat-man Act. 15 U.S.C. § 13(a) (1970). Perkasie purchased from Advance transformers which control the flow of electricity in lighting fixtures. Perkasie then assembled them into fluorescent lighting fixtures which it sold to retail outlets and electrical distributors. In its complaint, Perkasie alleged, inter alia, that Advance granted favorable pricing on transformers to Perkasie’s competitors, thereby preventing Perkasie from competing effectively and forcing it to abandon the manufacture of their product.

After this suit commenced the court filed a pre-trial scheduling order dated December 23, 1991. The order directed that discovery be completed by March 15,1992, set a trial date of June 1, 1992, and required that Perkasie’s expert damages report be submitted by January 15, 1992. A subsequent court order extended the date for completion of discovery to April 15, 1992, and the trial date to June 18, 1992, but without adjustment of the date for submission of Perkasie’s expert damages report.

Until March 23,1992, Perkasie had designated only Mr. Thomas Giedgowd, an accountant with Stockton, Bates & Co., as an expert witness who would offer an opinion on damages in this case. Perkasie had retained Mr. Giedgowd in the belief that he would be able to fully and accurately quantify its’ damages. (Pl.’s Mem. in Opp’n at 2). Mr. Giedgowd prepared three expert reports in which he calculated Perkasie’s losses based on the differential between the price which Perkasie paid for Advance’s transformers and the price which Perkasie would have paid in the absence of the alleged price discrimination. By multiplying that differential by the number of sales which Perkasie actually made and the number of sales which it would have made in a discrimination-free environment, Mr. Giedgowd arrived at a lost gross sales figure of approximately $465,000 for the years 1986 through 1990.

Perkasie submitted Mr. Giedgowd’s three reports to Advance on January 15, January 27, and February 14, respectively. Additionally, when responding to Advance’s ex[75]*75pert witness interrogatories submitted under Federal Rule of Civil Procedure 26(b)(4)(A), Perkasie identified these reports as “containing the substance of its expert’s opinion testimony and as constituting those documents which evidence, concern, refer, or relate to Plaintiff’s alleged damages.” (Def.’s Mot., App., Ex.’s C & D).

Having received the last two of Mr. Giedgowd’s reports after the January 15 deadline, Advance filed a motion asking that Perkasie be precluded from utilizing the reports filed on January 27 and February 14. On February 26,1992, the court denied Advance’s motion subject to Mr. Giedgowd’s being made available for deposition. Counsel for Advance then deposed Mr. Giedgowd on March 5, 6, and 9. Meanwhile, Advance retained an accountant as its expert witness to prepare a rebuttal to Mr. Giedgowd’s reports. However, on March 23, Perkasie served defendant with supplemental answers to its interrogatories in which it identified three new expert witnesses, viz., Drs. Samuel Kursh, Brian Sullivan, and Edward Friedman, all economists from the Center for Forensic Economic Studies (CFE). On April 1, 1992, Perkasie served counsel for Advance a copy of its latest expert report as prepared by the aforementioned economists identified in the supplemental response. This report calculated Perkasie’s damages at nearly double the figure estimated by Mr. Giedgowd.

Perkasie asserts that it requires the CFE analysis in order to quantify the impact of Advance’s alleged discrimination on Perkasie’s ability to expand its share of the lighting fixture market. The resulting lost sales, Perkasie argues, are an integral part of its damages claim and are recoverable under the antitrust laws. Because Mr. Giedgowd is an accountant and not an economist, he was unable to project level of sales Perkasie would have realized through expansion in a discrimination-free environment. In order to do so, it became necessary to hire an economist.

In its motion, Advance opposes the supplemental responses on two grounds. First, the introduction of additional expert reports violates the court’s pre-trial scheduling order of December 23. Second, Advance asserts that it will suffer undue prejudice if their motion is denied. Having prepared to rebut Perkasie’s damages claim on the basis of Mr. Giedgowd’s reports and his deposition, Advance will now be forced to depose the three new experts, retain their own economist to rebut the opinions offered by these witnesses, and realign their defense strategy accordingly. The trial is now scheduled for June 23, 1992. Advance argues that there is too little time remaining before trial to effectively meet this unexpected burden. Therefore, Advance demands that the report of the new experts be stricken and the three witnesses precluded from testifying at trial.

DISCUSSION

The exclusion of otherwise admissible expert witness testimony for failure to meet the timing requirements of a court order is an extreme measure. A pre-trial scheduling order is not intended to be a straightjacket restricting complete exploration of a party’s claims. It is, however, an important tool for the court’s effective management of a complex case. The court’s ability to exclude undisclosed witnesses in compliance with a pretrial order is essential to avoid unnecessary expense or delay. Therefore, the issue is to be resolved at the discretion of the trial judge. DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201 (3d Cir.1978).

The Third Circuit Court of Appeals has identified four factors a trial court should consider when excluding witnesses who are not identified timely. These factors are: (1) bad faith or willfulness in failing to comply with the court’s order; (2) prejudice or surprise of the party against whom the evidence is directed; (3) the ability of that party to cure the prejudice; and (4) the potential disruption of the ordinary trial of the case or other cases in court. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985).

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143 F.R.D. 73, 1992 WL 166042, 1992 U.S. Dist. LEXIS 8326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkasie-industries-corp-v-advance-transformer-inc-paed-1992.