United States District Court, W.D. Louisiana, Lafayette Division
TOTAL REBUILD, INC.
PHC FLUID POWER, L.L.C.
B. WHITEHURST, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
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.
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.
following reasons, the motion is DENIED.
PERTINENT FACTS AND PROCEDURAL HISTORY
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]. 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.
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.
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.
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
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
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”). [Doc. Nos. 280, 281, 282, 283, 284, 285].
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.
LAW AND ANALYSIS
[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