By Memorandum Order entered by The Honorable Leonard P. Stark in Masimo Corp. v. Philips Electronic North America. Corp. et al., Civil Action No. 09-90-LPS-MPT (D.Del., August 15, 2016), the Court denied Defendants’ motion to strike the reply expert report of Plaintiff’s reply expert, Dr. Quill. The Court reasoned that Dr. Quill’s reply expert report addressed issues concerning non-infringing alternatives that were raised for the first time in Defendants’ rebuttal expert reports. Id. at *4. The Court also noted that Plaintiff had been diligent and its opening reports were adequate and did not unreasonably withhold arguments or opinions for presentation in a future report. Id.
It is also worth noting that the Court had addressed an earlier iteration of the dispute during a discovery teleconference on April 14, 2016. See id. at *3. During that teleconference, “the Court ruled that ‘there’s nothing, per se, improper in . . . us[ing] a different expert in a reply report’ than was used in the opening reports and, hence, Dr. Quill could file a report – subject to a motion to strike.” Id.
A copy of the Memorandum Order is attached.