MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION IN LIMINE No. 3 TO EXCLUDE EXPERT. TESTIMONY REGARDING DR. PAUL ABATO'S ALLEGED RELIANCE ON EUROFINS REPORT

TED STEWART, District Judge.

This matter is before the Court on Xymogen's Motion In Limine No. 3 to Exclude Expert Testimony Regarding Dr. Paul Abato's Alleged Reliance on Eurofins Report. For the following reasons, the Court denies the Motion.

I. BACKGROUND

On June 6, 2016, Plaintiffs Thorne Research, Inc.'s and Softgel Formulators, Inc.'s (collectively "Thorne") expert, Kent Rader, submitted a declaration to which a report from Eurofins Scientific Inc. Supplement Analysis Center (the "Report") was attached. The Report details chemical analyses performed on Xymogen's accused products.

On May 17, 2017, Thorne served Dr. Paul Abato's expert report, in which he explains the materials he considered in reaching his opinions regarding the contents of Xymogen's accused products.1 The Report was not mentioned among the materials considered. Xymogen alleges the Report was also not mentioned as a source on which Dr. Abato based his opinions in his deposition, which took place on May 17, 2017. However, on December 26, 2017, Dr. Abato submitted an errata in which he added the Report as a basis for his opinions.2 Xymogen now seeks to bar "Dr. Paul Abato from testifying that he relied on [the Report], because he failed to timely disclose this alleged reliance in his expert report or during his deposition."3

In their Response, Thorne argues Dr. Abato should not be precluded from offering testimony that he relied on the Report in reaching his conclusions because Xymogen was put on notice that Dr. Abato did in fact rely on the Report. Thorne cites to two disclosures to support its argument. First, Dr. Abato's deposition transcript, wherein Xymogen asked him if "the [Report] analyze[d] the chemical composition of the accused products" and what the Report concluded about the products.4 Second, Dr. Abato's expert report wherein he lists "[t]he Court dockets for the case," under the "Facts or Data Considered" portion of his expert report.5 The Report is included in the Docket.6

II. STANDARD OF REVIEW

An expert report must contain "a complete statement of all opinions the witness will express and the basis and reasons for them [and] the facts or data considered by the witness in forming them."7 "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."8 "A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose."9 However, in exercising its discretion, the court should consider: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness."10

III. DISCUSSION

There is no Rule 26 violation, so Rule 37(c) does not apply. But, even if there was a violation, it is harmless since the Court finds that the weight of the above-stated factors is in favor of allowing Dr. Abato to testify regarding the Report.

First, Thorne has shown sufficient evidence that Xymogen was on notice that Dr. Abato relied on the Report in reaching his conclusions. In fact, as referenced, Thorne questioned him in regard to the contents of the Report during his deposition. Therefore, the prejudice or surprise to Xymogen is minimal. Because there is minimal prejudice, the ability of Xymogen to cure the prejudice is irrelevant. Therefore, both the first and second factors weight in favor of allowing Dr. Abato to discuss the Report.

Third, the extent to which allowance of the disputed testimony will disrupt trial is minimal. Dr. Abato will simply discuss an additional document which supports his conclusions. Trial will not be interrupted in any meaningful way by this addition.

Finally, the record does not support that Thorne acted in bad faith. Thorne knew that Xymogen had knowledge of the Report as it was contained in the Docket, and further, because Xymogen asked Dr. Abato about the Report in his deposition.

Based on the above analysis, the Court finds allowing Dr. Abato to testify about the Report to be harmless and will deny Xymogen's Motion accordingly.

IV. CONCLUSION

It is therefore

ORDERED that Defendant's Motion In Limine No. 3 to Exclude Expert Testimony Regarding Dr. Paul Abato's Alleged Reliance on Eurofins Report (Docket No. 278) is DENIED.