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Total Rebuild, Inc. v. PHC Fluid Power, L.L.C.

United States District Court, W.D. Louisiana, Lafayette Division

September 6, 2019





         This is a patent infringement case in which Plaintiff Total Rebuild (“Plaintiff”) contends systems and/or methods utilized by or through Defendant PHC (“Defendant”) infringe claims of United States Patent No. 8, 146, 428 (“the '428 Patent”). The '428 Patent is directed to systems and methods for safely testing devices and components under high-pressure.

         Pending before the Court is Defendant's “Motion to Exclude the Royston Report and Preclude the Testimony of John W. Royston” [Doc. No. 309]. Plaintiff responded to the motion. [Doc. No. 334]. Defendant filed a reply. [Doc. No. 351].

         For the following reasons, the motion is DENIED.


         Plaintiff filed the original complaint alleging patent infringement on June 11, 2015. [Doc. No. 1]. The case was originally assigned to Judge Richard Haik, and the First Scheduling Order was entered on November 6, 2015. The First Scheduling Order required the parties to file Daubert Motions by no later than 50 days before the pretrial conference, or 84 days before the jury trial. [Doc. No. 26 at 2].[1] The parties proceeded under the First Scheduling Order until it was vacated on June 29, 2016. [Doc. No. 48]. The parties were then ordered to file a Joint Scheduling Order within fourteen days (14) days. Id.

         The parties filed a proposed Joint Scheduling Order on July 12, 2016 [Doc. No. 49], and the Court entered it on July 14, 2016. [Doc. No. 50]. The Joint Scheduling Order only provided dates through the end of Phase I discovery. Id. at 2. The parties addressed the remainder of the schedule in their Rule 26(f) Report by stating that “following the Court's determination on the ‘428 Patent's claim construction, the Parties agree to meet and confer and propose a standard Scheduling Order that will take the Parties through a jury trial.” [Doc. No. 51 at 6]. The parties further stated that they anticipated the need for Phase II discovery. Id. at 8. The Court considered the Rule 26(f) Report and determined it to be complete. [Doc. No. 52 at 1]. The case proceeded under the Joint Scheduling Order, but a Markman hearing was never scheduled.

         On July 23, 2018, over three years after the filing of the original complaint, the case was reassigned to Judge Brian Jackson. [Doc. No. 147]. A status conference was held on August 22, 2018, and the Court set the Markman hearing and pretrial conference for November 28, 2018, with the trial date set for January 22, 2019. [Doc. No. 149 at 1]. The Court further ordered the parties to file a joint proposed scheduling order. Id. The parties failed to file a joint proposed scheduling order, and instead filed separate proposed scheduling orders on September 4, 2018. [Doc. Nos. 150 and 151]. On September 17, 2018, Plaintiff moved to continue and reset the trial date to a “later date.” [Doc. No. 152 at 1]. The Court denied Plaintiff's motion to continue the trial date, and ordered the parties to confer and come to an agreement on a proposed scheduling order. [Doc. No. 161 at 5-6]. On October 22, 2018, the parties submitted a Proposed Amended Scheduling Order. [Doc. No. 162]. The Court did not enter the Proposed Amended Scheduling Order.

         On November 21, 2018, the Court canceled the Markman hearing and pretrial conference set for November 28, 2018. [Doc. No. 146]. On November 30, 2018, Plaintiff proffered the report of John W. Royston (“the Royston Report”) in support for its claim for damages, which is the report and testimony at issue in this motion. On December 10, 2018, the Court continued the January 22, 2019 trial setting, and set the Markman hearing and pretrial conference for January 22, 2019. [Doc. No. 175 at 1]. On January 15, 2019, the Court reset the Markman hearing for March 29, 2019, with a preliminary pretrial conference to follow. [Doc. No. 213 at 1]. Plaintiff's counsel contacted the Court on the afternoon of March 28, 2019 stating that they were unprepared to proceed with the Markman hearing. [Doc. No. 264 at 1]. Plaintiff's counsel expressed a belief that no Markman hearing would be held because, according to counsel, the parties agreed to stand on their claim-construction briefs. Id. The Court order the parties to file a joint stipulation confirming that they agreed to stand on their briefs. Id. at 3. The Court set the pretrial conference for June 11, 2019, and the trial date for July 22, 2019. Id. On April 4, 2019, the parties stipulated to submitting the pending claim construction by the Court on the briefs. [Doc. No. 265 at 1-3].

         On April 18, 2019, almost four years after the filing of the original complaint, the case was reassigned to the undersigned. [Doc. No. 266]. On April 19, 2019, Defendant moved the Court to reschedule the trial date. [Doc. No. 268 at 1]. In its motion, Defendant argued that “PHC and its counsel recognize this case has been pending for several years. PHC has been ready to take this case to trial as far back as November 2018 . . .” [Doc. No. 268 at 1][2]. The Court granted Defendant's motion and directed the parties to contact the Court with reference to rescheduling the trial date in September 2019. [Doc. No. 270]. On May 1, 2019, the Court entered the Abbreviated Scheduling Order, which set the deadline for filing all motions in limine to no later than July 26, 2019. [Doc. No. 275 at 4]. The Court then entered its Opinion and Ruling on claim construction on June 10, 2019. [Doc. Nos. 279, 280]. The Court further entered Rulings and Orders on the motions in limine filed by Defendant on January 8, 2019 and January 11, 2019 (“the first round of motions in limine”).[3] [Doc. Nos. 280, 281, 282, 283, 284, 285].

         In conformance with the Abbreviated Scheduling Order, Defendant filed a number of motions in limine on July 26, 2019 (“the second round of motions in limine”). [Doc. Nos. 287, 290, 293, 295, 296]. However, Defendant waited until August 19, 2019, on the eve of trial, to file the instant motion. [Doc. No. 309]. For the reasons stated below, the Court determines that the Daubert motion is untimely and must be denied.


         “The [Federal] Rules of Civil Procedure endow the trial judge with formidable case-management authority.” Hernandez v. General Motors Corp., No. C-00-332, 2001 U.S. Dist. LEXIS 26264, at *4 (S.D. Tex. July 3, 2001). This authority includes drafting a case-management schedule that the district court enters as an order. See Id. It is well established that “a party who ignores any case-management deadline does so at his own peril.” Id. More specifically, “challenges to expert testimony may be waived for failure to adhere to deadlines” set forth in a scheduling order. Id.; see also, Queen Trucking, Inc. v. GMC, Civil Action No. 1:06-CV-052-C ECF, 2007 U.S. Dist. LEXIS 95082, at *6 (N.D. Tex. June 8, 2007); Vienne v. Am. Honda Motor Co., Civil Action No. 99-3716 Section “N”, 2001 U.S. Dist. LEXIS 1301, at *5 (E.D. La. Jan. 26, 2001). Based on this line of cases and further considering Defendant's explanation for missing the motion in limine deadline, the Court will not entertain ...

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