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Design Basics, LLC v. Forrester Wehrle Homes, Inc.

United States District Court, N.D. Ohio, Western Division

November 14, 2017

Design Basics, LLC, Plaintiff
v.
Forrester Wehrle Homes, Inc., et al. Defendant.

          ORDER

          James G. Carr, Sr. U.S. District Judge.

         This is a copyright infringement case concerning architectural works.

         Plaintiff 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 3488).

         FWH has 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.

         Defendant 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).[1]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.

         Background

         On 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).

         FWH 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).

         Also on 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 other pleading.

         Asking 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).

         Defendants 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.

         Discussion

         Before 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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 ...

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