1The court filed on June 5, 2007 a memorandum opinion and

order that decided the parties’ cross-motions for summary judgment.

AMX Corp. v. Pilote Films, 2007 WL 1695120 (N.D. Tex. June 5, 2007)

(Fitzwater, J.). Because the court set out the background facts

and procedural history in that opinion, see id. at *1-*2, it will

not do so again.

2

AMX argues that Hancock’s report is not really a supplement

but is a new report. The court holds that it is a supplement

within the meaning of Fed. R. Civ. P. 26(e)(1), which provides:

A party is under a duty to supplement at

appropriate intervals its disclosures under

subdivision (a) if the party learns that in

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AMX CORPORATION, §

 §

Plaintiff-counterdefendant,§

 § Civil Action No. 3:04-CV-2035-D

VS. §

 §

PILOTE FILMS, §

 §

Defendant-counterplaintiff.§

MEMORANDUM OPINION

 AND ORDER 

Plaintiff AMX Corporation (“AMX”) moves to strike the

supplemental report of defendant Pilote Films’s (“Pilote’s”) expert

witness, Robert Hancock (“Hancock”), and for leave to file motion

to exclude expert witness. The court denies the motion to strike

and grants the motion for leave to file motion to exclude expert

witness.1

I

The court first considers AMX’s motion to strike Hancock’s

supplemental report.2 

 

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some material respect the information

disclosed is incomplete or incorrect and if

the additional or corrective information has

not otherwise been made known to the other

parties during the discovery process or in

writing. With respect to testimony of an

expert from whom a report is required under

subdivision (a)(2)(B) the duty extends both to

information contained in the report and to

information provided through a deposition of

the expert, and any additions or other changes

to this information shall be disclosed by the

time the party’s disclosures under Rule

26(a)(3) are due.

(Emphasis added).

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A

Pilote submitted Hancock’s supplemental report to AMX on

September 27, 2006. AMX argues that the supplemental report is

untimely and highly prejudicial and is merely an attempt by Pilote

to circumvent AMX’s motion for summary judgment. Pilote responds

that it submitted the supplemental report only after it discovered

that AMX had sold products to Pilote’s customers before February 1,

2005 (the date Hancock used in calculating damages in his initial

report). AMX argues in reply that the documents from which Pilote

allegedly discovered that AMX had been making sales before February

1, 2005 were provided to Pilote on May 12, 2006, more than four

months before Hancock submitted his supplemental report; Hancock

could have included the opinions contained in his supplemental

report when he submitted his original report; and Hancock’s

supplemental opinions are not tied to the information Pilote

 

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3AMX also requests that Pilote not be allowed to submit any

rebuttal report because any such report would now be untimely since

it was due 30 days from August 24, 2006, the date AMX’s damages

experts were deposed. The court denies this component of the

motion without prejudice to AMX’s seeking leave to file a specific

motion, because the request is not connected to a particular

rebuttal report and analyzed in the context of that report. The

court therefore discerns no basis to grant AMX the relief it seeks.

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maintains was necessary for Hancock to prepare his supplemental

report.3

B

 Fed. R. Civ. P. 26(a)(2)(B) provides that the disclosure of

certain expert witnesses must be accompanied by a written report

that contains, inter alia, “a complete statement of all opinions to

be expressed.” Rule 26(a)(2)(C) establishes the default deadlines

and sequence for making such disclosures when the court has not

otherwise directed or the parties have not otherwise stipulated.

Rule 26(e) addresses the duty to supplement or correct Rule 26(a)

disclosures and discovery responses. 

Rule 26(e)(1) requires that, with respect to

the retained expert, there is a duty to

supplement the expert’s opinion if there is a

material change in the opinion. This

obligation extends to both the report required

by Rule 26(a)(2)(B), as well as the expert’s

deposition testimony. 

Jacobs v. Tapscott, 2006 WL 2728827, at *11 (N.D. Tex. Sept. 25,

2006) (Fitzwater, J.) (quoting Sullivan v. Glock, Inc., 175 F.R.D.

497, 502 (D. Md. 1997)), appeal docketed, No. 07-10558 (5th Cir.

May 22, 2007). “This supplementation must occur not later than the

 

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date of the pretrial disclosures required by Rule 26(a)(3).”

Sullivan, 175 F.R.D. at 502; Sierra Club, Lone Star Chapter v.

Cedar Point Oil Co., 73 F.3d 546, 570 n.43 (5th Cir. 1996) (“Rule

26(e)(1) requires that supplementation of expert disclosures be

made by the time the supplementing party’s ‘Pretrial Disclosures’

are due.” (citing Rule 26(e)(1))). 

At the time Hancock submitted his supplemental report on

September 27, 2006, the trial of this case was set for November 13,

2006. Pretrial disclosures under Rule 26(a)(3) were not due until

October 13, 2006. Therefore, the supplement was timely under Rule

26(e)(1). Moreover, the trial setting has now been continued to

the October 15, 2007 trial docket. Rule 23(a)(3) disclosures must

be made at least 30 days before the date of the trial setting,

which would be September 17, 2007 (the Monday following September

15). Hancock’s supplement was submitted substantially before the

currently scheduled trial date, and, as noted, before the deadline

that applied to the November 13, 2006 trial setting. 

Nonetheless, courts, including this one, have cautioned that

problems can arise when they allow supplementation too close to the

date of trial. See Jacobs, 2006 WL 2728827, at *11. 

[I]n light of the large window of time allowed

. . . to supplement expert disclosures, the

Court should not automatically permit

testimony at trial as to the newly discovered

information if, considering the facts of the

case, it is convinced that doing so would be

unfair or cause undue delay or expense.

 

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Id. (quoting Tucker v. OHTSU Tire & Rubber Co., 49 F.Supp.2d 456,

461 (D. Md. 1999)). In determining whether to permit trial

testimony based on information that is newly disclosed in a

supplemental report, 

the Court should consider the following

factors: (1) the explanation for making the

supplemental disclosure at the time it is

made; (2) the importance of the supplemental

information to the proposed testimony of the

expert, and the expert’s importance to the

litigation; (3) potential prejudice to an

opposing party; and (4) the availability of a

continuance to mitigate any prejudice.

Id. (quoting Tucker, 49 F.Supp.2d at 461). 

C

The court first considers Pilote’s explanation for its failure

to supplement earlier. Pilote maintains that, at the time of

Hancock’s preliminary report, it had not discovered any evidence to

contradict AMX’s answer to the requests for admissions that it had

not sold products to customers in France before February 1, 2005.

It posits that it was only later that it discovered that AMX had,

in fact, sold products directly into France to Pilote’s customers

before Feburary 1, 2005. Although AMX argues that it disclosed to

Pilote on May 12, 2006 the documents that revealed that AMX had

sold products into France before this date, there is no reason to

assume that Pilote was actually aware of this new information at

 

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4AMX argues that, in his supplement, Hancock has used a

“different methodology . . . resulting in additional damages.” P.

Mot. Strike 2. From the court’s review of Hancock’s report and

supplement, however, it cannot discern that Hancock’s methodology

has changed. Hancock uses the same calculation for all damages

accruing after February 1, 2005, arriving at the same figure——

$730,000——to represent the annual lost gross margin. Hancock has

adjusted his calculation of those damages incurred before February

1, 2005 to account for lower sales levels. In determining whether

to permit Hancock to supplement his expert report, the court will

not question the methodology Hancock employed in reaching his

calculation of damages for the period before February 1, 2005. 

5

This observation may be affected by the court’s decision

concerning Pilote’s pending motion for reconsideration.

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the time it was disclosed.4

The court addresses second the importance of the testimony.

Although Hancock’s opinions may have somewhat diminished importance

in view of the court’s summary judgment ruling,5 the evidence

nonetheless appears to be important. The supplemental report

suggests that Pilote’s lost profits are $213,000 more than Hancock

originally projected. 

The remaining two factors focus on prejudice: the prejudice to

AMX of allowing the evidence, and the possibility of curing the

prejudice through a continuance. Id. at *13 (citing MGE UPS Sys.,

Inc. v. Fakouri Elec. Eng’g, Inc., 2006 WL 680513, at *5 (N.D. Tex.

Mar. 14, 2006) (Means, J.)). The burden is on Pilote to show that

AMX will not be unduly prejudiced. Cont’l Cas. Co. v. St. Paul

Fire & Marine Ins. Co., 2006 WL 2506957, at *3 (N.D. Tex. Aug. 15,

2006) (Fitzwater, J.) (citing Wright v. Blythe-Nelson, 2001 WL

804529, at *5 (N.D. Tex. July 10, 2001) (Fitzwater, J.)).

 

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AMX argues that because the deadline for the designation of

rebuttal opinions passed on July 31, 2006, it is now limited in how

it can adequately respond to Pilote’s newfound damages model.

Because the supplementation occurred before Hancock was deposed on

January 25, 2007, the court discerns no undue prejudice. Moreover,

although at the time AMX filed its motion to strike, the trial was

set for November 2006, it has since been continued to the October

15, 2007 trial docket, which gives AMX ample time to to seek any

necessary relief to ameliorate undue prejudice arising from

Hancock’s supplemental expert opinion. 

Considering the four factors, the court holds in its

discretion that the opinions in Hancock’s supplemental report

should not be stricken. 

II

The court now considers AMX’s March 30, 2007 motion for leave

to file motion to exclude expert.

A 

AMX moves for leave to file a motion to exclude the testimony

of Pilote’s damages expert, Hancock, arguing that he is not

qualified as an expert under Fed. R. Evid. 702. AMX argues that

there is good cause to grant it leave to file the motion because it

was unable to secure Hancock’s testimony by deposition until six

months after the deadline to file motions. Pilote responds that

AMX’s motion is too late because Pilote served Hancock’s original

 

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report on June 30, 2006, his supplemental report on September 27,

2006, and his rebuttal report on October 5, 2006. It maintains

that AMX deposed Hancock on January 25, 2007, yet waited another

two months to seek leave to exclude his opinions. Pilote argues

that, because AMX offers no excuse for its delay, there is no

reason to deviate from the court’s scheduling order. It points out

that AMX does not argue that the opinions contained in Hancock’s

original report, rebuttal report, or supplemental report ever

changed and, because AMX was aware of Hancock’s opinions and

methodology for several months, as evidenced by AMX’s prior brief

regarding Hancock’s opinions, AMX has offered no basis for granting

it leave to file a late motion. 

B 

 The court has continued the trial of this case to the October

15, 2007 trial docket, has permitted Pilote to file a motion to

reconsider the court’s summary judgment ruling, and has granted AMX

leave to file a summary judgment motion. Under these

circumstances, it will also permit AMX to file a motion that

challenges Hancock’s expert testimony. 

Moreover, allowing AMX to file the motion will promote

efficiency in the trial of the case. Even had the court denied

AMX’s motion for leave, this would not of itself have precluded AMX

from objecting to Hancock’s expert testimony at trial. This court

does not normally require that parties challenge expert testimony

 

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in advance of trial through Daubert-type motions, on pain of

forfeiting their right to challenge the expert’s opinion testimony

at trial. And it did not do so in this case. Although the court

requires that Daubert-type motions, if made, be filed no later than

the catchall deadline that applies to a motion not otherwise

covered by the court’s scheduling order, and while the court

usually decides timely-filed Daubert-type motions, such motions are

not a prerequisite to objecting to expert testimony at trial.

Accordingly, by addressing before trial, to the extent possible,

AMX’s challenges to Hancock’s expert testimony, the court will

promote the efficient use of trial time.

* * * 

For the foregoing reasons, the court denies AMX’s November 13,

2006 motion to strike Hancock’s supplemental report, and it grants

AMX’s March 30, 2007 motion for leave to file motion to exclude

expert witness. AMX must file the motion——electronically or on

paper——no later than June 28, 2007.

SO ORDERED.

June 22, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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