United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge.
a copyright infringement case concerning architectural works.
Design Basics (DB) is a home plan design company that creates
and licenses copyright-protected architectural designs. It
accuses defendants, the home building company Forrester
Wehrle Homes and its affiliates (collectively, FWH) of
manufacturing and selling “three-dimensional infringing
copies (houses)” of its protected designs. (Doc. 89, ID
moved for summary judgment on the issue of substantial
similarity. (Doc. 82). This opinion adjudicates, however, a
threshold question: namely, whether I may consider expert
opinions from defendant's expert, Richard Kraly.
has submitted two expert reports from Richard Kraly: an
original report and a supplemental report. Pending are
plaintiff's motions to exclude both reports. (Doc. 89, ID
3501-03).For the reasons below, I grant
plaintiff's motion to exclude the original report in
part, deny it in part and grant plaintiff's motion to
exclude the supplemental report.
December 8, 2016, I entered the parties' stipulated
scheduling order, in which the parties agreed to disclose
expert-related materials by April 3, 2017, and submit any
“rebuttal” expert reports by April 24, 2017.
((Doc. 60, at 1420).
tendered Kraly's initial original report to DB by the
April 3rd deadline. FWH relied on this original report in its
July 17, 2017, motion for summary judgment on the issue of
the substantial similarity between DB's designs and its
designs. (Docs. 73, 82-7).
July 17th, three months after the close of discovery, FWH
disclosed its second, “supplemental” report from
Kraly (Doc. 110), to DB's counsel. But FWH did not
mention, much less rely on the supplemental report in its
motion for summary judgment or, so far as I can tell, any
me to exclude both reports from my consideration of
defendants' motion for summary judgment, DB argues that
both fail to comply with Fed.R.Civ.P. 26(a)(2)(B).
disagree. FWH insists that Kraly's original report
includes all the elements listed in subsection (a)(2)(B) of
Rule 26, and characterizes his supplemental report as just
that, a “supplement” which is not only permitted,
but required under subsection (e)(2) of that Rule.
an expert can testify at trial, “Federal Rule 26(a)(2)
requires that each expert witness prepare and sign a written
report containing his . . . opinions as well as other
pertinent information.” Cohlmia v. Ardent Health
Servs., LLC, 254 F.R.D. 426, 429 (N.D. Okla. 2008). That
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial ...