Presstek v. Creo, et al.

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 .

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

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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