United States District Court, D. Hawaii
ORDER DENYING DEFENDANT CROCS INC.'S MOTION TO
STRIKE SUPPLEMENTAL OPINIONS OF MILLER ENGINEERING
A. Otake United States District Judge.
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.
Second Amended Scheduling Order established the following
deadlines with respect to Plaintiffs Flora and David
Kang's (collectively “Plaintiffs”) expert
• January 31, 2018 for Plaintiffs' damages experts
• March 2, 2018 for Plaintiffs' liability experts
• April 30, 2018 for Plaintiffs' damages rebuttal
• May 15, 2018 for Plaintiffs' liability rebuttal
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
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.
18, 2018, Plaintiffs produced MEI's rebuttal
report. 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.”
20, 2018, Defendant filed the instant Motion to Strike
Supplemental Opinions of Miller Engineering Inc. Doc. No.
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 ...