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Frerck v. Pearson Education, Inc.

United States District Court, N.D. Illinois, Eastern Division

February 6, 2014




Defendant Pearson Education, Inc. ("Pearson") moves to strike plaintiff Robert Frerck's designated expert witness, Robert Aucone, contending that the witness was not timely disclosed as part of Frerck's case in chief and is not a proper rebuttal witness. (Def.'s Mot.) [Dkt 87.] In response, Frerck argues that the expert's report constitutes rebuttal evidence because he submitted the report to contradict Pearson's experts. (Pl.'s Resp.) [Dkt 91.] The District Judge has referred all discovery motions to this court. [Dkt 31, 34.] For the reasons below, Pearson's motion to strike is granted.


Frerck, a photographer, alleges that Pearson, a textbook publisher, infringed his copyrights by incorporating Frerck's photographs into textbooks without authorization. (Compl.) [Dkt 1.] As part of discovery supervision, this court granted Pearson's unopposed motion to extend the parties' deadline for disclosure of expert witnesses under Fed.R.Civ.P. 26(a)(2) to June 28, 2013. [Dkt 72.] Pearson subsequently moved, unopposed, for additional time to take Frerck's deposition and to serve its expert disclosures because Frerck served a supplemental disclosure regarding his claimed damages, including a 1, 300 page spreadsheet, on May 31, 2013. (Def. Unopposed Mot. Continue Dep. ¶ 7.) [Dkt 75.] Frerck agreed to sit for a continued deposition on the subject of damages and to an extension of the deadline for Pearson's expert disclosures. ( Id. ¶ 9.) The court granted Pearson's motion and extended the time for Pearson's expert disclosures to August 31, 2013. (Order, June 18, 2013.) [Dkt 76.] Frerck did not seek a similar extension.

Nearly two months after the original deadline, on August 22, 2013, Frerck sent Pearson a disclosure identifying himself and Robert Aucone as expert witnesses on the topic of damages. (Def.'s Mot., Ex. A.) Frerck explained that he could not yet provide a report for Mr. Aucone as required by Rule 26(a)(2)(B) because Mr. Aucone "is expected to provide rebuttal trial testimony" and Pearson had not yet submitted evidence about its calculation of damages. ( Id. ) On August 31, 2013, Pearson served reports from three experts, Raymond F. Lindley, Bradley N. Reiff, and N. Warren Winter. (Def.'s Mot. at 2.)[1]

On September 4, 2013, Pearson noted at a status hearing that it planned to move to strike Frerck's expert witnesses as untimely. Following that hearing, the parties' attorneys discussed Frerck's Rule 26(a)(2) disclosures, and Frerck's counsel agreed by email to withdraw them. (Def.'s Mot., Ex. B.) A day later, however, on September 11, 2013, Frerck again served Pearson a document identifying Robert Aucone as a witness expected to provide rebuttal testimony in response to the report by Pearson's experts about damages. ( Id., Ex. C.) Pearson's counsel then sent Frerck's counsel an email accusing him of trying "to backdoor in a damages report under the guise of a rebuttal report." ( Id., Ex. D.) Rather than responding to this email, Frerck sent Pearson a copy of a letter dated September 27, 2013, which apparently is Mr. Aucone's written report ("Aucone Report"). ( Id., Ex. E.) The parties could not reach an agreement about Mr. Aucone, so Pearson moved to strike him as an expert. (Def.'s Mot. at 4.)

Frerck does not argue that his disclosure of Mr. Aucone was timely as an expert on his case in chief. Rather, he argues that Mr. Aucone was timely disclosed as a rebuttal expert. (Pl.'s Resp. at 1.)[2]

Legal Standard

"The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse party.'" Peals v. Terre Haute Police Dept., 535 F.3d 621, 630 (7th Cir. 2008) (quoting United States v. Grintjes, 237 F.3d 876, 879 (7th Cir. 2001)). Thus, rebuttal reports are "limited to contradicting or rebutting evidence on the same subject matter identified by another party in its expert disclosures." Noffsinger v. The Valspar Corp., No. 09 C 916, 2011 WL 9795 at *6 (N.D. Ill. Jan. 3, 2011) (internal quotations omitted). A party may not "offer testimony under the guise of rebuttal' only to provide additional support for his case in chief." Id. "The plaintiff who knows that the defendant means to contest an issue that is germane to the prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as part of his case in chief." Braun v. Lorillard, Inc., 84 F.3d 230, 237 (7th Cir. 1996).


Pearson first argues that the court need not reach the question whether Mr. Aucone's report is proper rebuttal evidence because the court's scheduling order required expert witnesses to be disclosed by June 28, 2013. (Def.'s Reply at 1.) [Dkt 93.] The scheduling order is, however, silent on the matter of rebuttal experts. [ See dkt 72.] In that circumstance, rebuttal expert reports are due within 30 days of the other party's expert disclosures. Fed.R.Civ.P. 26(a)(2)(D)(ii); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). Because Mr. Aucone's report was served that time frame, it is not untimely if it qualifies as rebuttal evidence.

The central issue is whether Mr. Aucone's report demonstrates that he will give proper rebuttal testimony. Pearson points out that Frerck disclosed Mr. Aucone as a rebuttal expert before Pearson served its damages experts, that is, before there was anything to rebut. That fact certainly raises a question about Frerck's intended use for Mr. Aucone's testimony, but it is not necessary to rely on that as a reason to strike his report.

Pearson's motion succeeds, rather, because the content of Mr. Aucone's report is not proper rebuttal evidence. The report serves primarily as a vehicle for Mr. Aucone to outline his own view of the law of damages in copyright cases. It fails to meet the standards of Federal Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, experience, training, or education may testify in the form ...

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