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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JAMES P. DEFAZIO, et al.,

Plaintiffs,

 v.

 HOLLISTER, INC., et al.,

Defendants. /

NOS. CIV. 04-1358 WBS GGH

05-0559 WBS GGH

05-1726 WBS GGH

CONSOLIDATED

ORDER

----oo0oo----

Presently before the court are three motions:

defendants’ motion to strike expert reports, plaintiffs’ countermotion to strike expert reports, and a joint motion to dismiss

defendant Howard I. Simon, who died on October 31, 2008.

I. Motions to Strike Expert Reports

Defendants move to strike the expert reports of Kevin

G. Long (produced by plaintiff Kathleen Ellis) and Karen L.

Handorf (produced by the DeFazio/Dimaro plaintiffs) on the

grounds that the reports constitute impermissible legal opinions

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1 Defendants previously filed this motion before the

Magistrate Judge in connection with another motion to strike

pursuant to Federal Rule of Civil Procedure 26(a)(2). The

Magistrate Judge, however, declined to consider the motion

because it does not involve questions of discovery. (Dec. 1,

2008 Order (Docket No. 430) 2:7-10.)

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and otherwise lack relevance.1 (See Docket No. 433 at 2:2-8;

Docket No. 410 at 1:17-11:10.) In the event that the court

denies defendants’ motion, defendants alternatively request leave

to designate a rebuttal expert. (Docket No. 433 at 1:10-13.) If

the court instead grants the defendants’ motion, the

DeFazio/Dimaro plaintiffs in opposition ask that the court grant

them leave to correct their expert disclosures rather than strike

the report of Karen L. Handorf entirely. (Docket No. 419 at

12:7-16.)

Plaintiffs also counter-move to strike the report by

defendants’ experts Roger Grawbowski and John Levitske and the

report by defendants’ expert Wallace & Associates Inc. (See

Docket No. 435 at 1:9-12; Docket No. 439 at 2:4-7.) Plaintiffs

present a number of arguments for striking these expert reports,

including an assertion that defendants made factual

misrepresentations to their experts. (Id. at 5:11-6:6.)

The parties’ motions, aimed at excluding the expert

reports from consideration by the fact finder, are of a type

better suited for determination at trial. See Pipkin v.

Burlington N. & Santa Fe R.R. Co., No. 04-5591, 2005 WL 5977657,

at *1 (W.D. Wash. Oct. 26, 2005) (declining to decide a motion to

exclude an expert opinion when raised well in advance of trial);

In re Real Estate Assocs. Ltd. P’ship Litig., No. 98-7035, 2002

WL 31027451, at *1-2 (C.D. Cal. Aug. 29, 2002) (acknowledging

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that exclusion could be argued at trial but holding that a motion

to exclude an expert’s report and testimony before trial was

premature because no party had yet relied upon the report).

Accordingly, the court will deny the motions to strike

expert reports without prejudice to their renewal at trial. The

court will also grant defendants’ request for leave to designate

a rebuttal expert.

II. Motion to Dismiss Defendant Howard I. Simon

On December 22, 2008, the parties jointly filed a

motion seeking to dismiss defendant Howard I. Simon without

prejudice. The motion states that the parties have been informed

that Mr. Simon died on October 31, 2008. (Docket No. 434.) The

parties have stipulated to the dismissal without prejudice; no

party has objected. Accordingly, the court will dismiss this

action against Howard I. Simon without prejudice pursuant to

Federal Rule of Civil Procedure 41(a)(2). See Hells Canyon Pres.

Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005)

(noting that Rule 41(a) allows a dismissal of an entire action

against one defendant).

IT IS THEREFORE ORDERED that the parties’ motions to

strike be, and the same hereby are, DENIED without prejudice to

their renewal at trial.

IT IS FURTHER ORDERED that defendants are granted leave

to disclose a rebuttal expert and produce a report no later than

thirty days from the date of this Order. This Order does not

modify the discovery completion date of March 31, 2009.

IT IS FURTHER ORDERED that the parties’ joint motion to

dismiss defendant Howard I. Simon without prejudice be, and the

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same hereby is, GRANTED.

DATED: February 4, 2009

 

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