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Kim v. Crocs, Inc.

United States District Court, D. Hawaii

November 27, 2018

FLORA KIM, DAVID KANG, Plaintiffs,
v.
CROCS, INC., ET AL. Defendants.

          ORDER DENYING DEFENDANT CROCS INC.'S MOTION TO STRIKE SUPPLEMENTAL OPINIONS OF MILLER ENGINEERING INC. [1]

          Jill A. Otake United States District Judge.

         INTRODUCTION

         Defendant Crocs, Inc. (“Defendant”) moves to strike all new opinions contained in Miller Engineering, Inc.'s (“MEI”) May 18, 2018 rebuttal report because the opinions and supporting data should have been included in the original report, the new opinions directly contradict MEI's deposition testimony, and Defendant is prejudiced by the late disclosure. The Court DENIES the Motion for the reasons articulated below.

         BACKGROUND

         The Second Amended Scheduling Order established the following deadlines with respect to Plaintiffs Flora and David Kang's (collectively “Plaintiffs”) expert disclosures:

• January 31, 2018 for Plaintiffs' damages experts
• March 2, 2018 for Plaintiffs' liability experts
• April 30, 2018 for Plaintiffs' damages rebuttal experts
• May 15, 2018 for Plaintiffs' liability rebuttal experts

Doc. No. 189. On March 2, 2018, Plaintiffs produced MEI's expert report. In pertinent part, the report contained data for material composition testing completed by Fire and Material Research Lab (“FMRL”). Doc. No. 283-2 at 17-20. The testing did not include Crocs Kids Classic Clog or Crocs Fun Lab Justice League Lights Clog. Id. at 18-19.

         On April 23 and 25, 2018, Defendant deposed MEI witnesses Bradley Cook and Dr. James Miller. At his deposition, Mr. Cook testified that the Kids Classic Clog and Justice League Clog had not been tested. Mot., Ex. A at 116:4-118:9.

         On May 18, 2018, Plaintiffs produced MEI's rebuttal report.[2] Doc. No. 283-3. In it, MEI stated that FMRL performed testing on the Crocs Clog. Id. at 4. MEI explained that “[a]fter the deposition of Mr. Cook and during the preparation of this Rebuttal report, it was discovered that while the opinions related to the FMIR results were included in the initial report, the backup data was inadvertently not previously produced.” Id.

         On June 20, 2018, Defendant filed the instant Motion to Strike Supplemental Opinions of Miller Engineering Inc. Doc. No. 296.

         On August 13, 2018, the Court issued a Third Amended Rule 16 Scheduling Order, which, in pertinent part, continued the trial to June 18, 2019 and the ...


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