I’ve been involved in cases where counsel tried to exclude an expert opinion for having too few opinions, thus acting as a human calculator, but this is the first time I have seen an attempt to Daubert an expert for being too thorough. It wasn’t successful.
Here the court denied plaintiff’s motion to exclude the defendant’s expert opinion on invalidity. DataQuill contended that the report “fails to state the testimony the witness is expected to present during direct examination at trial” because it identifies an ‘unwieldy’ number of invalidity theories.” But the court concludes that “DataQuill has not provided the Court with any authority to support its argument” and that a “thorough reading of the report will allow DataQuill to adequately prepare to rebut and cross-examine Mr. Lanning about his opinions.” This Daubert motion may well have been a hail-mary, as plaintiffs apparently struggled to meet the deadlines in rebutting the large number of opinions. Throwing them a bone, the court extended their rebuttal report deadline by a few weeks.
DataQuill Limited v. High Tech Computer Corp., 3-08-cv-00543 (S.D. CA, August 26, 2011, Order) (Skomal)