Case 6:12-cv-00799-JRG Document 310-1 Filed 02/20/15 Page 1 of 4 PageID #: 9776
`Case 6:12—cv—00799—JRG Document 310-1 Filed 02/20/15 Page 1 of 4 Page|D #: 9776
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`EXHIBIT A
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`EXHIBIT A
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`Case 6:12-cv-00799-JRG Document 310-1 Filed 02/20/15 Page 2 of 4 PageID #: 9777
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`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
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`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
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`February 20, 2015
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`The Honorable Rodney Gilstrap
`U.S. District Court for the Eastern District of Texas
`100 East Houston Street
`Marshall, TX 75670
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`Re:
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`C.A. No. 6:12-cv-799-JRG; Invensys Systems, Inc. v. Emerson Electric Co., et al.
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`Dear Judge Gilstrap:
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`Graber’s expert opinions should be excluded because he is not exempt from the
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`requirements of Rule 26(a)(2)(B) merely because he is an employee of Micro Motion.
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`I.
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`Party Employees Are Not Exempt From the Expert Report Requirement.
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`Contrary to Defendants’ argument, an expert does not get a “free pass” on providing a
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`report simply by virtue of his employment status. An employee expert may be considered
`“retained” or “specially employed” pursuant to Rule 26(a)(2)(B) even if he is not compensated
`and providing expert testimony is not a part of his regular job description. See Spears v. United
`States, No. 5:13-CV-47-DAE, 2014 WL 258766, at *8 (W.D. Tex. Jan. 23, 2014) (“It is
`irrelevant for the purposes of Rule 26 whether an expert has been compensated . . . .”).
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`The majority view is that the question of special employment, and thus the report
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`requirement, turns on “the role the witness has played in the case,” that is, whether “his opinion
`testimony arises not from his enlistment as an expert but, rather, from his ground-level
`involvement in the events giving rise to the litigation.” Downey v. Bob’s Discount Furniture
`Holdings, Inc., 633 F.3d 1, 6, 7, n.3 (1st Cir. 2010); see also Nat’l R.R. Passenger Corp. v. Ry.
`Express, LLC, 268 F.R.D. 211, 216 (D. Md. 2010) (“it is the nature of the testimony itself” that
`determines whether a report is required). Accordingly, most courts have concluded that any
`employee of a party who provides an expert opinion outside the scope of his regular job duties
`should be considered “specially employed” and should submit an expert report.1 See Nat’l R.R.,
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`1 Physicians provide a good illustration. See Downey, 633 F.3d at 6. A treating physician who
`opines on matters within the scope of his usual duties caring for patients need not submit a
`report, while a doctor who examines a patient for the purpose of providing an opinion in
`litigation does. See Nat’l R.R., 268 F.R.D. at 216; see also LaShip, LLC v. Hayward Baker,
`Inc., 296 F.R.D. 475, 480-81 (E.D. La. 2013). The distinction between treating physicians and
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`Case 6:12-cv-00799-JRG Document 310-1 Filed 02/20/15 Page 3 of 4 PageID #: 9778
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`The Honorable Rodney Gilstrap
`February 20, 2015
`Page Two
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`268 F.R.D. at 214-18 (adopting the majority view and holding that employee experts were
`required to submit reports because they based their opinions in part on knowledge gained outside
`the ordinary course of employment from “information supplied in the litigation context”).
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`If Defendants’ position were correct, then a party could circumvent the report
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`requirement of Rule 26(a)(2)(B) merely by electing an employee to testify instead of hiring an
`expert. There is no viable public policy rationale for this artificial distinction. See id. at 716 (the
`“majority view” of Rule 26(a)(2)(B) honors the “spirit” of the rules and “leads to more efficient
`discovery”). If an employee expert is testifying about matters outside the scope of his
`employment, he should be required to submit a report fully documenting his qualifications, the
`basis and reason for his opinions, and the facts and data he considered. Most of Graber’s
`opinions do not fall within the scope of his job duties and therefore lack the grounding in
`personal knowledge and experience that Rule 26(a)(2)(C) demands in place of a full report.
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`II.
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`Graber’s Opinions Are Not Based on Knowledge Gained in His Regular
`Employment.
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`Although Rule of Evidence 703 does not require an expert to have personal knowledge,
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`this does not alter Rule of Civil Procedure 26(a)(2)(B)’s requirement that an expert submit a
`report when his opinions are based on information gained outside the scope of his regular job
`duties. For example, LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475, 483 (E.D. La. 2013),
`on which Defendants rely, held that the expert witness in question should have submitted a report
`because his opinions exceeded the scope of the pre-litigation engineering consulting work he had
`been hired to perform. LaShip thus supports Invensys’ interpretation of Rule 26.
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`Defendants do not dispute that before he took his current position as Micro Motion’s V.P.
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`of Marketing in October 2013, Graber’s job duties did not involve U.S. sales of or the U.S.
`market for the accused Coriolis flowmeters. Therefore, to the extent he has formed opinions and
`intends to offer expert testimony on these topics for time periods prior to October 2013, Graber
`should have provided an expert report in compliance with Rule 26(a)(2)(B). Because Graber
`failed to do so, his pre-October 2013 opinions should be excluded.
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`For the foregoing reasons, and the reasons set forth in its opening letter brief, Invensys
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`requests permission to file a motion to strike Graber’s expert disclosure.
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`physicians hired for purposes of litigation obviously does not turn on the physician’s
`employment status (because the doctor is not an employee of the patient in either case).
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`Case 6:12-cv-00799-JRG Document 310-1 Filed 02/20/15 Page 4 of 4 PageID #: 9779
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`Very truly yours,
`/s/ Claudia Wilson Frost
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`Claudia Wilson Frost
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`The Honorable Rodney Gilstrap
`February 20, 2015
`Page Three
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`All Counsel of Record (via ECF)
`cc:
`EAST\95785127.6