Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 1 of 14 PageID #: 29402
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 17-770-JDW
`
`JURY TRIAL DEMANDED
`
`)))))))))
`
`WIRTGEN AMERICA, INC.,
`
`Plaintiff,
`
`v.
`
`CATERPILLAR INC.,
`
`Defendant.
`
`CATERPILLAR INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTIONS
`TO STRIKE UNTIMELY NEW OPINIONS FROM DRS. JOHN MEYER,
`DURHAM GILES, AND PALLAVI SETH
`
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`POTTER ANDERSON & CORROON LLP
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`Attorneys for Defendant Caterpillar Inc.
`
`OF COUNSEL:
`
`James C. Yoon
`Christopher D. Mays
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 493-9300
`
`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Telephone: (206) 883-2500
`
`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019
`Telephone: (212) 999-5800
`
`Dated: November 6, 2023
`11150108/11898.00005
`
`PUBLIC VERSION
`
`Public Version Dated: November 8, 2023
`
`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 2 of 14 PageID #: 29403
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`TABLE OF CONTENTS
`
`PAGE
`
`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
`
`ARGUMENT ...................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`Legal Standard ........................................................................................................ 1
`
`Dr. Giles’ Untimely Opinions About Wirtgen America’s Spare Parts
`Catalogue Should Be Excluded .............................................................................. 3
`
`Dr. Meyer’s Untimely Opinions That Wirtgen America Practices the ’641
`Patent Should Be Excluded ..................................................................................... 5
`
`Dr. Seth’s Untimely Opinions from Her Deposition Errata Should Be
`Excluded ................................................................................................................. 7
`
`III.
`
`CONCLUSION ................................................................................................................. 10
`
`i
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`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 3 of 14 PageID #: 29404
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Finjan, Inc. v. Rapid7, Inc,
`C.A. No. 18-1519-MN, 2020 WL 5798545 (D. Del. Sept. 29, 2020) ................................... 2-3
`
`Integra Lifesciences Corp. v. Hyperbranch Med. Tech., Inc.,
`C.A. No. 15-819-LPS-CJB, 2017 WL 11558096 (D. Del. Dec. 11, 2017) ...............................3
`
`Liqwd, Inc. v. L'Oreal USA, Inc.,
`C.A. No. 17-14-JFB-SRF, 2019 WL 10252611 (D. Del. June 25, 2019) ............................2, 10
`
`Meyers v. Pennypack Woods Home Ownership Assn.,
`559 F.2d 894 (3d Cir. 1977).......................................................................................................1
`
`Reed v. Binder,
`165 F.R.D. 424 (D.N.J. 1996) ....................................................................................................9
`
`Sprint Commc'ns Co. LP v. Charter Commc'ns, Inc.,
`C.A. No. 17-1734-RGA, 2021 WL 979307 (D. Del. Mar. 16, 2021) ................................2, 4, 6
`
`St. Clair Intell. Prop. Consultants, Inc. v. Toshiba Corp.,
`C.A. No. 09-354-KAJ, 2015 WL 5826815 (D. Del. Oct. 2, 2015) ............................................2
`
`TQ Delta, LLC v. Adtran, Inc.,
`C.A. No. 14-954-RGA, 2020 WL 4529865 (D. Del. July 31, 2020) .....................................2, 7
`
`TQ Delta, LLC v. Adtran, Inc.,
`C.A. No. 14-954-RGA, 2021 WL 1200594 (D. Del. Mar. 30, 2021) ........................................2
`
`RULES
`
`FED. R. CIV. P. 26(a)(2)(B) ..............................................................................................................6
`
`FED. R. CIV. P. 26(a)(2)(B)(i)-(iii) ...................................................................................................1
`
`ii
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`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 4 of 14 PageID #: 29405
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`I.
`
`INTRODUCTION
`
`Wirtgen America’s Opposition concedes that the expert opinions subject to this Motion are
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`untimely and that Caterpillar’s experts were not given an opportunity to respond during expert
`
`discovery. With expert discovery closed and dispositive motions submitted, there is no time in the
`
`schedule to cure the resulting prejudice. Indeed, Wirtgen America has never made any offer to
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`cure – in its Opposition or otherwise.
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`The Pennypack factors do not support permitting these untimely opinions. By Wirtgen
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`America’s own admission, they do not constitute the type of “critical evidence” that courts are
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`hesitant to exclude. See, e.g., Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894,
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`905 (3d Cir. 1977). Wirtgen America repeatedly diminishes the importance of these opinions,
`
`describing them as cumulative of other evidence and immaterial to pending dispositive motions.
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`The Pennypack factors thus weigh in favor of excluding the opinions, particularly given the
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`extensive body of law limiting an expert’s testimony to what is actually disclosed in the reports.
`
`II.
`
`ARGUMENT
`
`A.
`
`Legal Standard
`
`Federal Rule of Civil Procedure 26 requires the expert to include “a complete statement of
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`all opinions the witness will express and the basis and reasons for them,” “the facts or data
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`considered by the witness in forming them,” and “any exhibits that will be used to summarize or
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`support them.” FED. R. CIV. PRO. 26(a)(2)(B)(i)-(iii).1 Rule 26 cannot be satisfied through
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`wholesale “incorporation by reference” of prior reports. Rather, there must be express disclosure
`
`of specific opinions from the prior litigation the expert seeks to adopt in the current action. See
`
`1 All emphases herein is added, and all internal citations and quotations are omitted unless
`otherwise noted.
`
`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 5 of 14 PageID #: 29406
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`Sprint Commc'ns Co. LP v. Charter Commc'ns, Inc., No. 17-1734-RGA, 2021 WL 979307, at *3-
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`4 (D. Del. Mar. 16, 2021) (striking expert testimony which was “incorporated [] by reference” into
`
`current report). Likewise, an expert’s anticipated testimony about a document is limited to those
`
`documents discussed in his report and “only to the extent he had rendered an opinion on them in
`
`his report.” St. Clair Intell. Prop. Consultants, Inc. v. Toshiba Corp., No. 09-354-KAJ, 2015 WL
`
`5826815, at *2 (D. Del. Oct. 2, 2015). An expert cannot simply offer untimely opinions even
`
`where the new opinions relate to or elaborate on existing opinions. See TQ Delta, LLC v. Adtran,
`
`Inc., No. 14-954-RGA, 2021 WL 1200594, at *2 (D. Del. Mar. 30, 2021) (striking untimely
`
`“supplementary disclosures that elaborate on” prior opinions); Liqwd, Inc. v. L'Oreal USA, Inc.,
`
`No. 17-14-JFB-SRF, 2019 WL 10252611, at *1 (D. Del. June 25, 2019) (“The Court will not
`
`permit any expert testimony that goes beyond the scope of expert reports.”).
`
`As to the Pennypack factors themselves, Delaware courts have held that it is prejudicial to
`
`withhold opinions from an expert report and require the opposing party to use a deposition “to
`
`ferret out what [the expert] might actually intend to say in this case.” Id. at *2-3. That prejudice
`
`becomes incurable where there would be insufficient time to reopen discovery and serve
`
`supplemental expert reports. See Finjan, Inc. v. Rapid7, Inc, No. 18-1519-MN, 2020 WL 5798545,
`
`at *4 (D. Del. Sept. 29, 2020) (“While the prejudice to Rapid7 is partially curable through
`
`responsive expert reports and expert depositions, at least some of the prejudice remains because .
`
`. . there is no time to reopen fact discovery under the schedule”); TQ Delta, LLC v. Adtran, Inc.,
`
`No. 14-954-RGA, 2020 WL 4529865, at *2 (D. Del. July 31, 2020) (“re-opening discovery to give
`
`Defendant an opportunity to cure the prejudice would only disrupt the schedule further”).
`
`While Wirtgen America argues that exclusion should be treated as an “extreme” sanction,
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`in “sophisticated, complex litigation involving parties represented by competent counsel, courts
`
`2
`
`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 6 of 14 PageID #: 29407
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`have been less indulgent in applying the Pennypack factors and more willing to exclude evidence
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`without a strict showing that each of the Pennypack factors has been satisfied.” Finjan, Inc., 2020
`
`WL 5798545, at *4.
`
`B.
`
`Dr. Giles’ Untimely Opinions About Wirtgen America’s Spare Parts
`Catalogue Should Be Excluded
`
`Wirtgen America admits that Dr. Giles’ opinions about the Spare Parts catalogue were
`
`never disclosed in his expert reports and only came to light when Wirtgen America’s attorney
`
`introduced the catalogue during an extended redirect. None of Wirtgen America’s arguments
`
`justifies its failure to disclose Dr. Giles’ opinions about this exhibit in his Rebuttal Report.
`
`First, Wirtgen America argues that because Dr. Giles expressed the ultimate conclusion in
`
`his Rebuttal Report that the accused Wirtgen America machines do not infringe the ’618 Patent,
`
`this permits Dr. Giles to offer undisputedly new opinions about the spare parts catalogue that
`
`support the ultimate conclusion. WA’s Opp. at 4. Wirtgen America’s argument puts the cart
`
`before the horse – ultimate conclusions as expressed in reports must be fully supported by the
`
`evidence in the reports themselves. They are not invitations for the expert to belatedly substantiate
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`his conclusions with new information.
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`Second, Wirtgen America argues that Caterpillar could not be surprised or prejudiced
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`because Caterpillar’s expert (Dr. Sorini) relied on the same document. But there are tens of
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`thousands of technical documents at issue in this case. Caterpillar cannot divine the opinions that
`
`Wirtgen America’s experts may have about any of them. See Integra Lifesciences Corp. v.
`
`Hyperbranch Med. Tech., Inc., No. 15-819-LPS-CJB, 2017 WL 11558096, at *11 (D. Del. Dec.
`
`11, 2017) (rejecting argument that moving party suffered no prejudice because opposing party’s
`
`expert “relied on [movant’s] own evidence in forming his opinion”). Moreover, in his Opening
`
`Report, Dr. Sorini discussed the spare parts catalogue in a totally different context than Dr. Giles,
`
`3
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`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 7 of 14 PageID #: 29408
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`making Dr. Giles’ unexpected opinions particularly prejudicial. Compare Mays Reply Dec. Ex. 8
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`(Sorini Opening Rpt.) ¶¶ 201, 215, 347 (discussing spray bars and water pumps) with Mays Op.
`
`Dec. Ex. 1 (Giles Tr.) 251:13-252:14 (quoted infra) (discussing formation of water reservoir). Dr.
`
`Giles had every opportunity to present his opinions in his Rebuttal Report, and Wirtgen America
`
`identifies no reason why Dr. Giles could not do so.2
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`Third, as to Pennypack factors 2 (ability to cure) and 3 (disruption to trial), Wirtgen
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`America argues that Caterpillar could have cured its prejudice by examining Dr. Giles more
`
`extensively about his newly disclosed opinions. This is another argument that has been rejected
`
`in this District. See Sprint Commc’ns, 2021 WL 979307, at *3 (“Nor is it somehow incumbent
`
`upon Defendants to use deposition time to ferret out what Dr. Wicker might actually intend to say
`
`in this case.”). Wirtgen America cannot force Caterpillar’s counsel to cross-examine Dr. Giles on
`
`the spot on a totally new exhibit found nowhere in his reports and that was introduced at the
`
`deposition by Dr. Giles’ counsel, not Caterpillar. Wirtgen America also ignores that dispositive
`
`briefing is complete. The schedule does not permit the reopening of expert discovery, nor does
`
`Wirtgen America offer such an option here.
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`Fourth, to excuse its improper conduct (Pennypack factor 4), Wirtgen America contends
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`that it was Caterpillar’s examination of Dr. Giles about a different document that somehow
`
`opened the door as to the new opinions regarding the spare parts catalogue. Not so. Wirtgen
`
`America had pre-printed the lengthy spare parts catalogue before redirect examination ever began.
`
`Dr. Giles’ testimony shows that Wirtgen America intended to introduce it from the beginning:
`
`Q. And what was your basis for your opinion that the accused Wirtgen machines
`have a water reservoir that is integrally part of the frame?
`
`2 Contrary to Wirtgen America’s suggestion, Dr. Sorini did not discuss the spare parts catalogue
`in his reply report and therefore offered no new opinions for Dr. Giles to rebut at his deposition.
`
`4
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`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 8 of 14 PageID #: 29409
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`A. It's not denoted anywhere, either visually in the inspection or in the parts
`manual documents, Wirtgen has a separate component that can be purchased or
`with a separate part number or a call-out.
`
`. . .
`
`Q. And you just mentioned the parts manual.
`
`MR. OGDEN [Wirtgen America counsel]: Will you hand me that? How many
`copies are there?
`
`MR. NORTH [Wirtgen America counsel]: There's two.
`
`MR. OGDEN: That's one? (Marked Exhibit 284.)
`
`BY MR. OGDEN:
`
`Q. So can you confirm what Exhibit 284 is?
`
`MR. MAYS: Objection, outside the scope of direct.
`
`THE WITNESS: What this appears to be is a spare parts manual for the W 210 Fi
`and is -- yes, it's that.
`
`See Mays Op. Dec. Ex. 1 (Giles Tr.) 251:13-252:14.
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`Finally, as to Pennypack factor 5, Wirtgen America never suggests that the spare parts
`
`catalogue is an important document. The catalogue is a Wirtgen America document, and Dr. Giles
`
`could have easily cited to it in his Rebuttal Report on non-infringement. Instead, Dr. Giles chose
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`to refer to other exhibits to show non-infringement. When Wirtgen America moved for summary
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`judgment of non-infringement of the ’618 Patent, it also never discusses the spare parts catalogue,
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`suggesting that its probative value is entirely cumulative of other evidence. Indeed, Wirtgen
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`America concedes this fact: “Whether Dr. Giles points to photographs, CAD drawings, or the
`
`Spare Parts Manual to illustrate the Wirtgen machines, his opinion . . . are [sic] the same.” WA
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`Opp. at 4. Dr. Giles’ opinions based on the spare parts catalogue should be stricken.
`
`C.
`
`Dr. Meyer’s Untimely Opinions That Wirtgen America Practices the ’641
`Patent Should Be Excluded
`
`Dr. Meyer previously opined on whether Wirtgen America has a sufficient domestic
`
`5
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`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 9 of 14 PageID #: 29410
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`industry to have standing in the ITC to commence an investigation covering only a subset of the
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`Asserted Patents here. It is undisputed that Dr. Meyer never discussed his prior analyses in any of
`
`his three reports in this action. Nothing prevented him from doing so in a specific and detailed
`
`way, given that he was presumably familiar with his prior analyses, which he never claims to be
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`relevant to this action in their entirety.
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`Wirtgen America argues that there is no prejudice because the entire analyses were
`
`produced in fact discovery. But so were thousands of pages of record evidence from the ITC
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`Proceeding. That cannot justify Dr. Meyer’s violation of Rule 26, especially where Caterpillar
`
`had no indication that Dr. Meyer intended to rely on it. Indeed, in the 400 pages of his expert
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`reports, Dr. Meyer never indicated that he intended to rely on his prior analyses. The prior analyses
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`were instead relegated to a single row in his list of “materials considered,” which itself consisted
`
`of 448 rows of documents. That plainly fails to satisfy FED. R. CIV. P. 26(a)(2)(B):3
`
`In many paragraphs Defendants seek to strike, Dr. Wicker incorporates entire
`reports and testimony from prior litigation.
`. . .
`To the extent the highlighted cross-references and incorporations by reference are
`supposed to represent a disclosure in compliance with Rule 26, I do not think they
`do. They are purposeful obfuscation (or, hiding the ball) of what the opinions are
`that Dr. Wicker intends to express at the trial in this case. The rule calls for the
`disclosure of “all opinions the witness will express,” not all opinions the witness
`has or has ever had. The Rebuttal Report is in response to whatever it is that
`Defendants’ experts have opined. Wholesale incorporation of opinions offered at
`different times in different cases, only some of which could possibly be relevant to
`the opinions Defendants’ experts are offering in this case is not literally in
`compliance with the rules. The practice is also inconsistent with the spirit of the
`Rule. Sprint, 2021 WL 979307, at *2-3.
`
`As to Pennypack factors 2 and 3, as discussed, there remains insufficient time to reopen
`
`expert discovery, especially since dispositive motion briefing is completed. See supra at 4.
`
`3 While it would not have constituted a sufficient disclosure, Dr. Meyer did not even incorporate
`his prior analysis by reference, underscoring the lack of any notice received by Caterpillar.
`
`6
`
`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 10 of 14 PageID #: 29411
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`Regarding Pennypack factor 4, Wirtgen America’s Rule 26 violation is aggravated by the
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`fact that Caterpillar put Wirtgen America on notice of the absence of any analysis by Dr. Meyer
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`regarding Wirtgen America’s practice of its own patents. During Dr. Seth’s deposition which
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`predated Dr. Meyer’s deposition by two weeks, Caterpillar cross-examined Dr. Seth about this
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`very issue. See Mays Reply Dec. Ex.4 9 (Seth Dep. Tr.) 64:5-12 (informing Dr. Seth that Dr.
`
`Meyer did not “offer[] any opinions that any Wirtgen products practice any of the claims of the
`
`patents in this case”). In advance of Dr. Meyer’s deposition, Wirtgen America took no steps to
`
`correct the deficiencies in his report and analysis. See TQ Delta, LLC, 2020 WL 4529865, at *2.
`
`Finally, regarding Pennypack factor 5, Wirtgen America conclusorily argues that if Dr.
`
`Meyer’s new opinions are excluded, it will “impact its claims for damages and for objective indicia
`
`rebutting Caterpillar’s claims of obviousness.” WA’s Opp. at 10. But Wirtgen America already
`
`admitted that Dr. Meyer’s anticipated testimony on this point is at best cumulative. In opposing
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`Caterpillar’s Daubert #2, Wirtgen America argued that it does not need expert testimony to prove
`
`that its products practice the patents. D.I. 242 at 16 (“Among other things, Wirtgen is free to
`
`introduce evidence regarding the configuration and features of its machines through fact witnesses
`
`and documents.”). As such, Dr. Meyer’s untimely opinions should be excluded.
`
`D.
`
`Dr. Seth’s Untimely Opinions from Her Deposition Errata Should Be
`Excluded
`
`Dr. Seth’s errata completely reverses her opinion regarding Wirtgen America’s “minimum
`
`willingness to accept” (“MWA”). She originally opined that the MWA would remain constant
`
`regardless of how many patents Caterpillar infringed: “Q. Does the
`
` [MWA] change
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`at all depending on the number of patents that are ultimately found valid and infringed in this case?
`
`4 “Mays Reply Dec. Ex.” refers to the exhibits attached to the Declaration of Christopher D.
`Mays filed herewith in support of the Reply.
`
`7
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`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 11 of 14 PageID #: 29412
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`A . . . No, it does not.” D.I. 213-2 at 108:11-18. But, through her errata, Dr. Seth now opines that
`
`the MWA would change depending on the number of infringed patents. D.I. 213-4. That opinion
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`is untimely and should be excluded.
`
`In defense, Wirtgen America premises its entire Pennypack analysis on the (incorrect)
`
`claim that Dr. Seth previously disclosed her new MWA opinion in her reports. Wirtgen America
`
`claims that “Dr. Seth disclosed her opinions in her expert reports, misspoke during her deposition,
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`and served an errata to correct her misstatements to align with the analysis and opinion in her
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`expert reports.” WA’s Opp. at 11. But Wirtgen America’s claims are all false, and its Pennypack
`
`analysis fundamentally incorrect because: (i) Dr. Seth’s expert report did not disclose her new
`
`MWA opinions (including that the MWA would be
`
` if Caterpillar infringed only the
`
`’268 and/or ’972 Patents); (ii) the context of Dr. Seth’s deposition demonstrates that she did not
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`“misspeak,” much less multiple times, during her original testimony; and (iii) Dr. Seth’s errata
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`does not contain corrections but untimely expert opinions never previously disclosed.
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`First, Dr. Seth never claims in her reports that Wirtgen America’s MWA depends on the
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`number of infringed patents. If that opinion were in Dr. Seth’s reports, Wirtgen America would
`
`have cited or quoted it. Instead, Wirtgen America is only claiming that a
`
` MWA for the
`
`’268/’972 Patents was “disclosed” in a specific row and column in one of Dr. Seth’s 26 tables and
`
`its underlying exhibits (and nowhere else). WA’s Opp. at 13; see Mays Reply Dec. Ex. 10 (Seth
`
`Opening Rpt.) at Table 8. The appearance of
`
` in a row of a table titled “Apportioned
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`Surplus Value” – that is on its own vague and ambiguous – does not constitute a proper Rule 26
`
`disclosure of the opinion that the MWA varies depending on the number of infringed patents or
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`that any numbers therein reflect an apportioned MWA.
`
`8
`
`

`

`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 12 of 14 PageID #: 29413
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`Expert reports must be “detailed and complete” and “include the substance of the testimony
`
`which an expert is expected to give . . . together with reasons therefor.” FED. R. CIV. P. 26 Advisory
`
`Committee’s note; see also Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J. 1996). Dr. Seth’s single
`
`mention of a
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` lost profits figure – buried in a one of 26 tables and without any explanation
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`– does not come close to satisfying this standard. That figure is not “sufficiently complete, detailed
`
`and in compliance with the Rules so that surprise is eliminated, unnecessary depositions are
`
`avoided, and costs are reduced.” Id. Neither in the table nor anywhere else in the reports does Dr.
`
`Seth explain how the
`
` figure relates to Wirtgen’s MWA or to any adjustments to the
`
`
`
` figure based on the infringement of other patents. Dr. Seth does not identify the basis or
`
`reason for her conclusions in the table or her errata.
`
`Second, the context of Dr. Seth’s original deposition testimony shows that it was not
`
`provided in error. Dr. Seth admitted (and did try to not alter via errata) that she “did not conduct
`
`any patent-by-patent apportionment with respect to [her] calculation of Wirtgen America’s
`
`9
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`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 13 of 14 PageID #: 29414
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`minimum willingness to accept.” D.I. 213-2 at 108:19-109:2. At her deposition, Dr. Seth testified
`
`clearly and consistently that Wirtgen’s MWA calculation would remain the same regardless of
`
`how many patents were infringed. Id. at 108:11-109:2. Indeed, Dr. Seth was given an opportunity
`
`eight times to address changes to the MWA given different infringement scenarios and always
`
`testified consistently that the MWA calculation would remain the same. Id. at 112:2-116:17. Dr.
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`Seth even explained why her MWA calculation does not change under these scenarios:
`
`Wirtgen… does not – license its patents. So, the incentive for them to come to the
`table for any kind of negotiation requires the essentiality of these bundle of patents
`in a way. And how this bundle as perceived by Caterpillar at the time of
`hypothetical negotiation is what's playing a role in this assumption of why
`
` stays constant across the board.
`
`Id. at 116:9-17. Dr. Seth did not misspeak eight times. She may now genuinely want to change
`
`her original opinions, but Wirtgen America never sought leave of court to do that.
`
`Finally, Wirtgen America cites case law to argue that courts are reluctant to strike
`
`deposition errata, claiming that Dr. Seth’s errata opinions do not change her “underlying [lost
`
`profits] theory.” WA’s Opp. at 11-12. But, as demonstrated above, Dr. Seth’s errata constitute a
`
`marked departure from her existing opinions. While Caterpillar would normally be entitled to
`
`cross-examine Dr. Seth about her errata, the cases cited by Wirtgen America do not support forcing
`
`Caterpillar to contend with an errata containing brand-new opinions that were never previously
`
`disclosed in expert reports. Liqwd, 2019 WL 10252611, at *1.
`
`Because Dr. Seth’s errata not only drastically change her deposition testimony but also add
`
`brand-new opinions that were never disclosed and entirely inconsistent with existing opinions in
`
`the expert reports, the errata should be stricken as untimely, improper expert opinions.
`
`III.
`
`CONCLUSION
`
`For the foregoing reasons, Caterpillar respectfully requests that the Court grant its motion
`
`to strike the untimely opinions of Drs. Giles, Meyer, and Seth.
`
`10
`
`

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`Case 1:17-cv-00770-JDW Document 267 Filed 11/08/23 Page 14 of 14 PageID #: 29415
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`Respectfully submitted,
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Bindu A. Palapura
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`Attorneys for Defendant Caterpillar Inc.
`
`OF COUNSEL:
`
`James C. Yoon
`Christopher D. Mays
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 493-9300
`
`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Telephone: (206) 883-2500
`
`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019
`Telephone: (212) 999-5800
`
`Dated: November 6, 2023
`11150108/11898.00005
`
`11
`
`Public Version Dated: November 8, 2023
`
`