United States District Court, E.D. Virginia, Norfolk Division
GENETIC VETERINARY SCIENCES, INC., d/b/a Paw Prints Genetics, Plaintiff,
LABOKLIN GMBH & CO. KG & THE UNIVERSITY OF BERN, Defendants.
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
comes on Plaintiff, Genetic Veterinary Sciences, Inc. d/b/a
Paw Print Genetics' ("Plaintiff or "PPG")
Motion for Clarification and Reconsideration of Order Denying
Plaintiffs Motion for Summary Judgment and Granting
Defendants' Motion to Strike Plaintiffs Statement of
Undisputed Facts In Part ("the Motion"). Doc. 95 at
1. The Final Pretrial Conference for this matter is set for
April 19, 2018 and there is a jury trial set for April 30,
2018. For the reasons stated below, this Court
DENIES Plaintiffs Motion.
BACKGROUND AND PROCEDURAL HISTORY
January 31, 2018, after hearing argument on Plaintiffs Motion
for Summary Judgement, this Court reserved its ruling and
entered an Order requiring Plaintiff to file a brief with its
list of undisputed facts and related declaration that
complies with Federal and Local Rules. Doc 80. On February 2,
2018 Plaintiff filed a brief that amended its undisputed
facts in support of summary judgment to comply with local
rules ("First Updated Statement"), but failed to
amend its original declaration in support of the Motion for
Summary Judgment. Doc 81. On February 6, 2018 Defendant filed
a Motion to Strike the original declaration. Docs. 82-83.
Defendant also filed a response to Plaintiffs First Updated
Statement. Doc. 84. On February 9, 2018, the Court issued an
Order that required Plaintiff to submit an amended
declaration. Doc. 85. The Order also gave Defendant an
additional ten (10) days to respond to the amended
declaration, and denied the Motion to Strike as moot.
February 14, 2018 Plaintiff filed an updated statement of
undisputed facts ("the Second Updated Statement")
in support of summary judgment which included an amended
declaration ("the Amended Shaffer Declaration") in
support of summary judgment. However, both the Second Updated
Statement and Amended Shaffer Declaration in support of
summary judgment included additional facts and exhibits that
were not presented at the hearing on the Motion for Summary
Judgment on January 31, 2018. Docs. 86, 86-1-86-10.
February 26, 2018 Defendant filed a renewed Motion to Strike
Plaintiffs Second Updated Statement and Amended Shaffer
Declaration in support of summary judgment. Doc. 89, 90.
March 27, 2018 this Court entered an Order denying Plaintiffs
Motion for Summary Judgment and Granting Defendants'
Motion to Strike Plaintiffs Statement of Undisputed Facts in
part. Doc. 93. The Court found that Plaintiffs expanded
explanation in Dr. Shaffer's declaration went beyond that
which was authorized by the Court's previous orders, and
that Dr. Shaffer's testimony constitutes expert testimony
under Rule 702 of the Federal Rules of Evidence. Id.
Because the Court found that the expanded declaration was
improper, the Court granted Defendants' Motion to Strike
Plaintiffs Statement of Undisputed Facts in part, by denying
Plaintiff the right to use the Updated Statement of Facts or
Amended Shaffer Declaration in support of its Motion for
Summary Judgment, but allowed the most recent Amended Shaffer
Declaration to qualify as an expert report pursuant to Rule
26(a)(2)(C). Id. The Court also felt compelled to
impose restrictions upon Plaintiffs presentation of expert
testimony due to the untimely manner of the disclosure, and
granted the following extensions to Defendant:
1. Plaintiff shall make Dr. Shaffer available for deposing by
Defendants within ten (10) days of the date of this Order;
2. Defendants shall have the opportunity to present testimony
in rebuttal of Dr. Shaffer's declaration and shall
furnish to the Plaintiff the information required for expert
testimony under Rule 26(a)(2)(B) or (C) as applicable at
least five (5) days prior to the Final Pretrial Conference;
3. The testimony of Dr. Shaffer shall be limited to the four
corners of her most recent Amended Declaration and the
opinions and factual basis for the same as outlined therein.
Plaintiff shall not be permitted to offer expert testimony
other than that of Dr. Shaffer at trial.
4. Plaintiff is not entitled to depose any expert witness
retained or identified by Defendants in rebuttal to Dr.
March 29, 2018, Plaintiff filed the instant Motion. Doc. 95.
Defendants filed their response on March 30, 2018. Doc. 96.
April 3, 2018, Plaintiff notified the Court that it did not
intend to file a reply. Doc. 97.