D’Pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc. (D. N.H. 17-cv-00747).

New Hampshire guitar-maker D’Pergo accused instrument retailer Sweetwater Sound of using a copyrighted photograph of D’Pergo’s trademarked custom guitar necks and headstock to promote and sell Sweetwater products.  Liability has already been decided in favor of D’Pergo, but damages remain to be determined.  In the litigation, Sweetwater designated an expert on damages and served an expert report.  The expert subsequently became seriously ill and had to withdraw from the case.  When Sweetwater designated a substitute expert and produced a new expert report, D’Pergo moved to strike all paragraphs containing an opinion or fact that did not appear in some form in the original expert’s report.  Judge McCafferty denied the motion to strike.  She noted that the Federal Rules of Civil Procedure disallow the use of an expert whose report was untimely uncles the delay was either substantially justified or harmless.  The incapacity of an expert due to illness or death constitute substantial justification for the untimely disclosure of a substitute expert’s report, so long as the substitute report is not unduly delayed.  She further noted that courts look with disfavor on parties who claim surprise or prejudice but who fail to seek a continuance to counter the belated testimony.  In this case, Sweetwater had notified D’Pergo on April 23rd of the need for the original expert to withdraw, and provided the new report on July 15th, just over a month prior to the trial date.  Sweetwater also moved to continue the trial for 60 days to allow D’Pergo time to address the new expert and potentially update its own report.  D’Pergo does not contest that Sweetwater was substantially justified in serving the delayed report, but contends that it will be prejudiced if the report is permitted to stray from the original.  Judge McCafferty noted, however, that this approach would require that the delay be both justified and harmless, in contravention to the case law.  Further, while D’Pergo suggests prejudice, it has not identified any particular prejudice it would suffer if the report were allowed to stand.  Additional time and discovery had been granted to address the new report, and the differences between the reports were not significant enough to cause a change in D’Pergo’s litigation strategy.  Given the justification for the delay, and the lack of suggestion that the designation of the new expert involved evasion or concealment, the report was allowed to stand.

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