IN RE CAPACITORS ANTITRUST LITIGATION

Background

The plaintiffs, referred to in the opinion as DPPs, asked to exclude three defense experts—Dr. Jerry Hausman, Dr. Lauren J. Stiroh, and Dr. Darrell Williams—because the defendants currently going to trial had not disclosed them by the applicable deadline. The plaintiffs also asked the court to limit the total number of defense experts. Panasonic separately moved to quash, or cancel, a trial subpoena for Dr. Williams and requested a protective order for him.

The deadline for expert reports on liability and damages was February 22, 2019, and the expert-discovery cutoff was June 7, 2019. KEMET had disclosed Dr. Stiroh, and Panasonic had disclosed Dr. Williams, while those companies were active defendants. Both experts provided reports and were deposed. The remaining defendants later designated them for trial after KEMET and Panasonic settled with the plaintiffs. Dr. Hausman was not disclosed by either deadline and was first identified on October 3, 2019. No report meeting the usual requirements for an expert report was disclosed for him, and the plaintiffs had not deposed him.

Dr. Hausman

The court explained that failing to disclose an expert under Federal Rule of Civil Procedure 26(a)(2) normally supports barring the testimony under Rule 37(c). But the defendants argued that Dr. Hausman would be called only to rebut testimony by Dr. McClave about whether Dr. McClave performed a “residual analysis.” The court found that this was permissible rebuttal testimony under Rule 26(a)(2)(D)(ii), because Dr. Hausman’s declaration was provided within 30 days after the relevant proceeding. The court also found that the later production of other required information appeared harmless under Rule 37(c)(1).

Dr. Hausman may testify only if Dr. McClave testifies about having performed a residual analysis, and his testimony will be limited to that issue. The court may still exclude Dr. Hausman’s testimony if another expert addresses the same issue in a way that would make his testimony cumulative or repetitive. The plaintiffs may depose Dr. Hausman on that issue before he testifies.

Dr. Stiroh

The court declined to exclude Dr. Stiroh. Although the remaining defendants had not disclosed her, KEMET had disclosed her before settling, and she had been treated as a testifying witness throughout expert discovery. The plaintiffs received her report and deposed her, giving them a full opportunity to examine her opinions. The court therefore denied the plaintiffs’ motion to preclude her testimony as undisclosed.

Dr. Williams and Number of Experts

Because the defendants represented that they did not presently intend to call Dr. Williams if Dr. Stiroh could testify, Panasonic’s motion to quash Dr. Williams’s subpoena and the plaintiffs’ motion to preclude his testimony were both terminated as moot.

The court did not reduce the defendants’ nine-expert limit for the time being. It warned, however, that defendants proceeded at their peril under the trial’s time limits and that cumulative expert testimony could be terminated. The court stated that it declined to exclude Dr. Hausman or Dr. Stiroh under Rules 403, 702, or 37. Judge James Donato signed the order on February 25, 2020.