`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.,
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`CATERPILLAR INC.,
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`Plaintiff/Counterclaim-Defendant,
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`v.
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`C.A. No. 17-770-JDW
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`
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`Defendant/Counterclaim-Plaintiff.
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`WIRTGEN AMERICA, INC.’S MOTION TO STRIKE
`CATERPILLAR INC.’S UNTIMELY NEW EXPERT OPINIONS
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`Wirtgen America, Inc. (“Wirtgen”) respectfully moves to strike Caterpillar Inc.’s
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`(“Caterpillar”) two new expert declarations attached to Caterpillar’s Motion Regarding Estoppel
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`Defenses (D.I. 364) purporting to provide new expert opinions on issues that were never raised
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`before in this case: D.I. 368 (Declaration of Richard W. Klopp) and D.I. 367 (Declaration of
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`Andrew W. Smith). The opinions presented in these declarations were never disclosed in
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`Caterpillar’s responses to interrogatories, not included in these experts’ reports, and not
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`mentioned in the pretrial order. These new expert opinions are untimely and procedurally
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`improper under Federal Rule of Civil Procedure 37(c)(1).
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`Accordingly, Wirtgen moves the Court to strike them pursuant to Meyers v. Pennypack
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`Woods Home Ownership Ass’n, 559 F.2d 894, 904–05 (3d Cir. 1977) for the reasons set forth in
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`Wirtgen’s Brief in Opposition to Caterpillar’s Motion Regarding Equitable Defenses and
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`Wirtgen’s Cross Motion to Strike.
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`1
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`Case 1:17-cv-00770-JDW Document 378 Filed 05/10/24 Page 2 of 2 PageID #: 34517
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`Dated: May 10, 2024
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`
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`Of Counsel:
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Mark A. Kilgore
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`Roundabout Plaza
`1600 Division Street, Suite 500
`Nashville, Tennessee 37203
`(615) 242-2400
`rdl@iplawgroup.com
`sro@iplawgroup.com
`wes@iplawgroup.com
`mak@iplawgroup.com
`
` -
`
` and -
`
`
`Daniel E. Yonan
`Paul A. Ainsworth
`R. Wilson Powers III
`Kyle E. Conklin
`Deirdre M. Wells
`Joseph H. Kim
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`1101 K Street NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`tpowers@sternekessler.com
`kconklin@sternekessler.com
`dwells@sternekessler.com
`josephk@sternekessler.com
`
`Attorneys for Wirtgen America, Inc.
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`
`YOUNG CONAWAY STARGATT & TAYLOR,
`LLP
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
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`2
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