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Genetic Veterinary Sciences, Inc. v. Laboklin GMBH & Co. KG

United States District Court, E.D. Virginia, Norfolk Division

April 4, 2018

GENETIC VETERINARY SCIENCES, INC., d/b/a Paw Prints Genetics, Plaintiff,
v.
LABOKLIN GMBH & CO. KG & THE UNIVERSITY OF BERN, Defendants.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On 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. Id.

         On 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.

         On 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.

         On 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. Shaffer.

         On March 29, 2018, Plaintiff filed the instant Motion. Doc. 95. Defendants filed their response on March 30, 2018. Doc. 96.

         On April 3, 2018, Plaintiff notified the Court that it did not intend to file a reply. Doc. 97.

         II. ...


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