SARAH S. VANCE, District Judge.
Defendants move to strike the supplemental report by Dr. Gordan Rausser, expert for the Direct Purchaser Plaintiffs' ("DPPs"), as supplemented on November 3, 2014.
The Court issued Pretrial Order No. 20 ("PTO #20") in this case on October 21, 2013.
On Monday, July 7, 2014, defendants filed a motion contending that they had just received a new reply report issued by Dr. Rausser, over three weeks after the deadline for reply reports and only three days before his scheduled deposition.
In response to defendants' motion to strike, DPPs claimed that the supplemental report sought only to "correct a misunderstanding regarding PoolCorp's pricing data" and to make "minor refinements" or "adjustments" in response to critiques from defendants' experts' reply reports.
In an Order issued July 9, 2014, the Court analyzed the arguments for and against permitting the new report under Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990), which sets forth four factors that a court should consider when exercising its discretion to permit or exclude evidence produced by a party in violation of a scheduling order. Based on the information before the Court at the time, the Court determined that the Geiserman factors weighed in favor of not permitting use of the report.
On August 7, 2014, one week before the regular status conference, DPPs asked the Court to revisit its decision about the supplemental report. The Court conducted an in camera review of Dr. Rausser's original reports, defendants' experts reply reports, and Dr. Rausser's supplemental report. After studying the reports and hearing from counsel on both sides, the Court revised its Order regarding the supplemental report and permitted DPPs to submit the report, subject to a set of strict conditions. First, the Court gave defendants two additional months for their experts to review the new report and submit a written critique.
Defendants' experts submitted their new analysis of Dr. Rausser's supplemental report to plaintiffs in mid-October, and the parties conducted an additional day of deposition with Dr. Rausser on November 3, 2014. At the beginning of the deposition, defendants asked Dr. Rausser what he had done to prepare for the deposition. Dr. Rausser revealed that he had revisited his analysis from the supplemental report. Specifically, he explained that he and his team had performed a "quality assessment," during which they discovered a number of "coding errors," which they then corrected. He went on to describe a number of changes that he and his team had made to the supplemental report. He also produced a document titled "Results after clarification of quantity, unit-of-measure, cost indices, and inflation factor," which is a one-page chart itemizing changes to various figures in his supplemental report.
Defendants now move to strike Dr. Rausser's new calculations and his testimony regarding his new calculations and changes to the supplemental report. The Court has studied Dr. Rausser's deposition testimony and his chart of changes. The Court finds that Dr. Rausser's new calculations, his one-page chart of changes, and the testimony he provided on November 3, 2014 regarding his new calculations and changes all violate the strict terms of the Court's orders. In addition, because DPPs provided no notice to defendants that Dr. Rausser had completed additional work, defendants did not learn of Dr. Rausser's new calculations until they began deposing him. Moreover, DPPs never requested permission, nor have they shown good cause, for Dr. Rausser to produce work exceeding the scope of the Court's orders.
DPPs have stipulated that they do not object to the Court striking Dr. Rausser's deposition testimony describing his new calculations or the chart summarizing his changes to the supplemental report.
In accordance with the parties' stipulation, the Court will not strike these portions of the deposition.
Because Dr. Rausser's new calculations and changes to the supplemental report exceed the scope of the Court's previous orders, and because good cause has not been shown for permitting the new calculations and changes, the Court grants defendants' motion to strike. Thus, the Court strikes Dr. Rausser's chart of changes to the supplemental report and his November 3, 2014 deposition testimony regarding his new calculations and changes. The parties may only submit the unstricken portions of the deposition listed above. Moreover, Dr. Rausser may not submit any other documents or testify at any later time in this litigation regarding any calculations or changes to his reports beyond the calculations included in his July 7, 2014 supplemental report.