Essilor International SAS v. J.P. Morgan Chase Bank, N.A.

Background

Plaintiff Essilor Mfg. (Thailand) Co., Ltd. moved to strike the damages report of Gene L. Deetz, which Defendant J.P. Morgan Chase Bank, N.A. offered on the issue of damages. Essilor argued that the report was an untimely opening expert report because JPMC served it on the deadline for rebuttal reports rather than the deadline for opening reports. Essilor had served two expert reports concerning liability but had not served a damages report.

JPMC argued that the Deetz Report was timely because it responded to assumptions in the report of Essilor’s liability expert, Richard M. Fraher. JPMC also said it understood that it would not need to serve a damages report until after Essilor served one, because Essilor had the burden of proving damages.

The scheduling order required opening expert reports by June 28, 2024, rebuttal reports by July 30, 2024, and reply reports by August 29, 2024. Expert discovery was scheduled to end on September 27, 2024, and summary-judgment motions were due on October 25, 2024.

Analysis

The court found it unnecessary to decide whether JPMC’s service of the Deetz Report complied with the scheduling order. It instead considered whether exclusion—also called preclusion, meaning preventing the expert from testifying—was appropriate. The court explained that exclusion is a severe remedy and considered four factors: the explanation for the disclosure failure, the importance of the expert’s testimony, the prejudice to the opposing party, and whether a continuance could address the problem.

The court found that the factors weighed against exclusion. JPMC had explained that it expected Essilor to serve a damages report and therefore believed its own report would be due with rebuttal reports. The Deetz Report also responded in part to assumptions in Fraher’s analysis. The court considered the report important because it addressed the remedy if Essilor proved liability and rejected Essilor’s argument that the damages calculation was simple or could easily be presented by a nonexpert witness. Any prejudice to Essilor could be reduced by allowing Essilor to depose Deetz. Because no trial date had been set, a short extension would not interfere with resolving the case.

Rulings

The court denied Essilor’s motion to strike the Deetz Report. It denied the motions at Dkt. Nos. 166 and 172 to the extent they sought to redact the information in paragraph 14 of Dkt. No. 173-1, and otherwise granted those motions concerning the Deetz Report. JPMC was directed to file a redacted version consistent with the order by August 26, 2024.

The court denied without prejudice the motions at Dkt. Nos. 166 and 172 concerning the reports of Richard M. Fraher and Terri Sands. The documents remained under seal so JPMC could file a renewed sealing motion under the standards governing public access to court records. If no renewed motion was filed by August 26, 2024, the court stated that it would direct that two of the documents be unsealed. The court also noted that the presumption of public access could become stronger if the reports were later used with a summary-judgment motion or at trial.

The court stated that it would consider a letter motion by Essilor to use a damages rebuttal expert and extend discovery, provided Essilor first met and conferred with JPMC and filed the motion by August 30, 2024. Judge Lewis J. Liman directed the Clerk of Court to close the listed motions.