Previously Undisclosed Market Share Apportionment Theory Stricken From Expert Report

The court overruled plaintiff's objections to the magistrate judge's order partially striking the report of plaintiff's damages expert. "⁠[Plaintiff] contends . . . all of the information [the expert] relied upon in forming his market share apportionment opinion was made known to [defendant] during fact discovery. To the extent [defendant] needed additional third-party discovery, [plaintiff] alleges it is [defendant's] fault for not seeking it earlier. The Court disagrees. Even if all the information [the expert] relied upon in forming his opinion was made known to [defendant], the market share apportionment theory itself was never disclosed prior to [his] report. Instead, [plaintiff] maintained only its two-player/product market theory, a theory that (at least in part) contradicts the newly-asserted market apportionment theory. That [defendant's] own discovery may have shown that the market was not a two-party/product market is not the issue."

Integra LifeSciences Corporation et al v. HyperBranch Medical Technology, Inc., 1-15-cv-00819 (DED March 13, 2018, Order) (Stark, USDJ)