Olddog,
Your lead line is misleading. The Judge did not rule on the substantive issues. He dismissed the motion for a procedural (form over substance) flaw. He told the parties how to cure the problem via an agreement. Absent an agreement, IDCC can file its motion again provided they include that the parties are in disagreement. The rules requiring the moving attorney to state that he attempted to get the other side to agree with the motion is pretty silly, but defendants use them to their advantage on a daily basis. The new matters raised by the expert have not yet been admitted into evidence. At the end of a deposition of an expert, you always ask if he/she has any other opinions that have not been covered today. If they answer yes, you pull teeth to get them all. In this instance, it appears the expert opined in a rebuttal statement regarding a theory of non-infringement. An IDCC expert is allowed to rebut the new opinion provided that it was timely made, filed and noticed. The rules are constantly being tampered with in order to prevent an ambush at trial. When I first started in the legal profession, each side would show up with their witnesses and the best cross-examiner usually won. Perry Mason entertained the viewers weekly when the music suddenly played louder and he would call a throw down witness at the end saving the day for his client. Now, the real hero is the little nerd chained to a chair in the law library inventing ways for the trial lawyer to keep the other side from presenting evidence and providing the truth to the jury. Boring? You bet, but form over substance rules have prevented true justice from being served since their inception. If the new opinion is admissible, Max Grant will be ready to tear it down at trial. If it is inadmissible, it will be dealt with prior to trial via motions in limine. Judge Andrews is conducting a fair litigation process and is keeping and maintaining a clean record so any actions he takes are error free.
MO
loop
