Presstek v. Creo, et al.

2007 DNH 078

• Court: District Court, D. New Hampshire
• Decided: June 14, 2007
• Docket: CV-05-65-PB
• Status: Published

Opinion

Presstek v. Creo, et al. CV-05-65-PB 06/14/07

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Presstek, Inc.

v. Case N o . 05-cv-65-PB Opinion N o . 2007 DNH 078 Creo, Inc. & Creo Americas, Inc.

MEMORANDUM AND ORDER

Creo, Inc. and Creo Americas, Inc. (collectively “Creo”)

have moved for Leave to File a Motion to Strike Expert Opinions

and Evidence pursuant to Federal Rules of Evidence 104(a) and

702. For the reasons set forth below, I grant Creo’s motion.

I. BACKGROUND

The Discovery Plan in this case required the parties to file

summary judgment motions by June 3 0 , 2006, submit expert reports

on the issues of infringement and invalidity by July 2 1 , 2006,

and file any challenges to expert witnesses by September 2 6 ,

2006. (Doc. Nos. 4 6 , 5 4 ) . In accordance with these deadlines, Creo filed a motion for

summary judgment of non-infringement on June 3 0 , 2006. Presstek

disclosed the report of its infringement expert, D r . Samuel Gido,

on July 2 1 , 2006. It then relied on D r . Gido’s report in

opposing Creo’s motion for summary judgment. On August 2 8 , 2006,

Creo filed its reply brief in further support of its motion for

summary judgment. In the reply brief, Creo challenged D r . Gido’s

anticipated testimony, arguing that he did not collect and

analyze sufficient, reliable scientific data to support his

infringement opinions. (Doc. N o . 67 at 13-17).

On September 1 5 , 2006, in response to Creo’s criticism of

Dr. Gido’s report, Presstek filed supplemental expert

disclosures, including a second report from D r . Gido and an

additional report from a new expert. On March 3 0 , 2007, I

granted in part and denied in part Creo’s timely motion to strike

these late reports, and allowed the parties to conduct additional

discovery regarding D r . Gido’s admissible late opinion. (Doc.

No. 114).

Also on March 3 0 , 2007, I issued a separate Memorandum and

Order addressing Creo’s arguments for summary judgment. As I

-2- explained in the Memorandum and Order, I declined to reach Creo’s

challenge to the reliability of D r . Gido’s anticipated testimony

because Creo had raised the issue for the first time in its reply

brief, and, as a result, briefing on the issue was incomplete.1

I also cited the Reference Manual on Scientific Evidence, 54-56

(2d Ed. 2000), in explaining that the preferred method for

presenting such a challenge was by filing a motion to exclude

pursuant to Fed. R. Evid. 104(a). I then denied Creo’s motion

for summary judgment without prejudice to its right to file a

motion to exclude D r . Gido’s testimony.

II. ANALYSIS

Presstek argues that Creo waived its right to file a motion

to exclude D r . Gido’s testimony because it failed to do so by the

September 2 6 , 2006 deadline established in the Discovery Plan.

The Federal Rules of Civil Procedure “endow trial judges

with formidable case-management authority.” Rosario-Diaz v .

1 Creo was not at fault for raising the issue for the first time in its reply brief because Presstek did not disclose D r . Gido’s report until after Creo had filed its summary judgment motion.

-3- Gonzalez, 140 F.3d 3 1 2 , 350 (1st Cir. 1998) (citing Fed. R. Civ.

P. 16(b)(2)) (case management decisions are reviewed for abuse of

discretion). Broad discretion extends to a trial judge’s

determination of “how to perform its gatekeeping function under

Daubert.” Goebel v . Denver & Rio Grande W . R.R. Co., 215 F.3d

1083, 1087 (11th Cir. 2000); see also Kumho Tire C o . v .

Carmichael, 526 U.S. 1 3 7 , 152 (1999) (A “trial judge must have

considerable leeway . . . in deciding how to test an expert’s

reliability, and to decide whether or not special briefing or

other proceedings are needed to investigate reliability.”).

“Nothing prohibits [a trial court] from hearing a Daubert motion

during trial,” Club Car, Inc. v . Club Car (Quebec) Import, Inc.,

362 F.3d 775, 780 (11th Cir. 2004), or “when asked to rule on a

motion in limine, on an objection during trial, or on a post-

trial motion.” Goebel, 215 F.3d at 1087.

In the present case, Creo presented its challenge to D r .

Gido’s anticipated testimony in its reply brief, well before the

September 2 6 , 2006 deadline for such challenges established by

the Discovery Plan. Although I declined to address its challenge

at that time because the issue had not been fully briefed and I

-4- preferred that it be raised in a separate motion to exclude filed

pursuant to Rule 104(a), it is clear that Creo substantially

complied with its obligation to notify Presstek of its challenge

to D r . Gido’s testimony by the deadline established in the

Discovery Plan.2 In any event, Presstek has failed to present a

persuasive argument that it would be unfairly prejudiced if I

granted Creo’s request and I have substantial discretion to

control the timing and manner in which evidentiary challenges are

presented. To wait until the middle of trial to hear Presstek’s

challenge to D r . Gido’s testimony would be grossly inefficient

and would increase the likelihood that my ruling on the issue

would be incorrect. I decline to follow that path. Accordingly,

I grant Creo’s motion.

III. CONCLUSION

For the reasons set forth, I grant Creo’s motion for Leave

2 Presstek argues that Creo’s request must be denied because it has failed to demonstrate “excusable neglect” as is required by Fed. R. Civ. P. 6 ( b ) . Rule 6(b) is inapplicable, however, because Creo substantially complied with its disclosure obligations when it raised its objections to D r . Gido’s anticipated testimony in its reply brief.

-5- to File a Motion to Strike Expert Opinions (Doc. N o . 1 1 8 ) . Creo

shall filed its motion within 30 days from the date of this

Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 1 4 , 2007

cc: Brian Comack, Esq. Kenneth George, Esq. Michael Kasdan, Esq. William Lee, Esq. Gordon MacDonald, Esq. Nora Passamaneck, Esq. Lisa Pirozzolo, Esq. James Rosenberg, Esq. Arpiar Saunders, Esq. Michael Solomita, Esq. S . Calvin Walden, Esq.

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