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No. 448

Document Wirtgen America, Inc. v. Caterpillar, Inc., 1:17-cv-00770, No. 448 (D.Del. Aug. 21, 2024)

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No. 446 ORDER: upon consideration of Plaintiff Wirtgen America, Inc.'s Motion to Strike Caterpillar, ...

Document Wirtgen America, Inc. v. Caterpillar, Inc., 1:17-cv-00770, No. 446 (D.Del. Aug. 19, 2024)

Motion to StrikeGranted

AND NOW, this 19th day of August, 2024, upon consideration of Plaintiff Wirtgen America, Inc.’s Motion To Strike Caterpillar, Inc.’s Untimely New Expert Opinions (D.I.

378), for the reasons stated in the accompanying Memorandum, it is ORDERED that the Motion is GRANTED, and the Declarations of Andrew W. Smith (D.I.

367) and Richard W. Klopp (D.I.

368) are STRICKEN.

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No. 445 MEMORANDUM OPINION

Document Wirtgen America, Inc. v. Caterpillar, Inc., 1:17-cv-00770, No. 445 (D.Del. Aug. 19, 2024)

Now, when it turns out that Caterpillar needs to present additional evidence, it submitted the two declarations without asking for permission and it is now in the position of begging for forgiveness.

Reopening the record, and permitting all the curative steps necessary, would delay the case at a time that Wirtgen is seeking an injunction.

And, while I can relax the rules of evidence during a bench trial, there’s no reason for me to do so when the effect is to deprive Wirtgen of the opportunity to cross-examine Drs.

I note that the Parties briefed this issue as a motion to exclude expert testimony pursuant to Federal Rule of Civil Procedure 37(c)(1).

That Rule excludes previously undisclosed expert testimony from being used as “evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV.

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