Unreported / Non-Citable
Background
CEATS sued TicketNetwork and Ticket Software for allegedly breaching a patent-license agreement executed after the parties settled an earlier infringement action. The agreement required payment of a per-transaction royalty for ticket purchases made through an online system containing specified interactive seat-map functionality. The parties disputed what qualified as the licensed functionality and which sales counted as royalty-bearing transactions.
CEATS retained Robert McSorley as its damages expert, while TicketNetwork retained Keith Ugone. After the deadline for expert discovery, CEATS sought leave to serve McSorley’s supplemental report. TicketNetwork opposed Section 9, which addressed evidence that TicketNetwork used the licensed functionality, and Section 11, which criticized portions of Ugone’s analysis.
The Court’s Holding
The court granted CEATS’s motion in part. It denied leave for Section 9 because that section offered untimely affirmative opinions about TicketNetwork’s alleged use of the licensed functionality, a liability issue outside McSorley’s damages assignment. The underlying information had been available before the initial-report deadline, and CEATS did not adequately justify its delay. Allowing the opinions would substantially prejudice TicketNetwork, while a continuance would disrupt the trial schedule.
The court allowed most of Section 11 despite finding that it was late rebuttal rather than proper supplementation. McSorley’s criticisms generally relied on no new information, the delay was not egregious, and the court found no prejudice from the general rebuttal. It nevertheless excluded specified passages that relied on Section 9, addressed what constituted the licensed functionality, or analyzed future ticket sales.
Key Takeaways
- An expert may not use a purported supplemental report to introduce affirmative opinions based on information available before the initial-report deadline.
- Labeling liability opinions as context for a damages analysis does not make them proper supplementation.
- A court may permit modestly late rebuttal when the delay causes no prejudice, while excluding portions that introduce new or untimely subject matter.
Why It Matters
The ruling illustrates the distinction among affirmative, rebuttal, and supplemental expert opinions. That classification can determine whether an opinion is timely and admissible, regardless of how the serving party labels the report.
For litigators, the decision underscores the importance of including all available affirmative opinions in the initial expert report and diligently pursuing discovery. A later report generally cannot repair an earlier omission, especially when it reaches a central liability issue and would require reopening discovery or disturbing the trial schedule.