In Re: Disposable Contact Lens AntiTrust Litigation This Document Relates to: All Actions Case No. 3:15-md-2626-J-20JRK United States District Court, M.D. Florida Filed December 29, 2020 Klindt, James R., United States Magistrate Judge ORDER I. Status *1 This cause is before the Court on two motions regarding experts. The motions and relevant filings are listed in turn. A. Defendants’ Motion to Strike Plaintiffs’ Submission of Supplemental Expert Disclosure from Michael A. Williams in Violation of the Court's January 12, 2018 and January 16, 2020 Orders (Doc. No. 1153; “Defendants’ Williams Motion”), filed February 25, 2020, that Plaintiffs oppose, see Plaintiffs’ Opposition to Defendants’ Motion to Strike the Williams Errata (Doc. No. 1162; “Plaintiffs’ Response to Williams Motion”), and Declaration of Nathaniel C. Giddings (Doc. No. 1163), both filed March 3, 2020. With leave of Court, Defendants replied and Plaintiffs sur-replied. See Defendants’ Reply in Support of Their Motion to Strike Plaintiffs’ Submission of Supplemental Expert Disclosure From Michael A. Williams in Violation of the Court's January 12, 2018 and January 16, 2020 Orders (Doc. No. 1188; “Reply”) and Declaration of Jonathan H. Hatch in Support (Doc. No. 1189), both filed April 28, 2020; Plaintiffs’ Sur-Reply in Further Opposition to Defendants’ Motion to Strike the Williams Errata (Doc. No. 1191; “Sur-Reply”), filed May 11, 2020. B. Plaintiffs’ Motion to Compel Discovery From Defendants’ Industry Expert, Dr. John McClane (Doc. No. 1190; “Plaintiffs’ McClane Motion”), filed May 11, 2020, that Defendants oppose, see Defendants’ Opposition to Plaintiffs’ Motion to Compel Additional Discovery From Dr. John McClane (Doc. No. 1193; “Defendants’ Response to McClane Motion”), and Declaration of Jonathan H. Hatch in Support (Doc. No. 1194), both filed May 26, 2020. II. Motions A. Defendants’ Williams Motion At the time Defendants’ Williams Motion was filed, trial was relatively imminent. Shortly afterwards, the COVID-19 pandemic struck the country. As a result, the trial has been postponed indefinitely, with the parties most recently proposing on November 30, 2020 that they provide the Court in 45 days with an updated status report on their views related to scheduling a trial (Doc. No. 1227). 1. Arguments In Defendants’ Williams Motion, Defendants[1] seek to strike “a supposed ‘errata’ to the Merits Report of Michael A. Williams” that was served by Plaintiffs on Defendants on January 31, 2020. Defendants’ Williams Motion at 1. Also sought are costs and fees incurred in preparing Defendants’ Williams Motion. Id. at 3. The Williams Errata provides updated damages estimates and was authored sometime after Dr. Williams “became aware ... that GfK sales data does not include sales in the Internet channel.” Id. at 7 (quoting id. at Ex. 1 (January 31, 2020 Williams Errata)). As grounds for seeking to strike the Williams Errata, Defendants contend it violates the Court's Orders setting expert discovery deadlines, id. at 2-5, the most recent deadline for Plaintiffs to submit expert merits disclosures being February 15, 2018, see Order (Doc. No. 749), entered January 12, 2018. Defendants argue the Williams Errata, although phrased that way, is hardly the sort. Instead, “[i]t makes substantive and substantial changes to Plaintiffs’ claimed damages calculations, increasing the estimates by $53 million under their horizontal conspiracy theory ...; by $43 million under their vertical JJVCI allegations ...; and by nearly $8 million under their vertical Alcon allegations.” Defendants’ Williams Motion at 6-7 (citing id. at Ex. 1 (Williams Errata dated January 31, 2020), Ex. 3 (Williams Merits Report dated February 15, 2018)). According to Defendants, “Dr. Williams's new calculations [are not based on new information but] instead react, two years too late, to a problem that Defendants’ expert Dr. Baye identified in his March 2018 report: that Dr. Williams's damages calculations in his February 2018 report relied on GfK data that does not include Internet sales.” Id. at 9. Defendants contend they will be prejudiced if the Williams Errata stands because they would have trial preparation disrupted and “would need to re-depose him concerning his calculations and would need to respond with supplemental reports from their own experts.” Id. at 10. *2 Responding, Plaintiffs explain that only when Dr. Williams received Dr. Baye's second report on December 4, 2019 discussing “the limitations in the GfK data” did it became necessary to correct Dr. Williams's damages calculations because of the “prior misunderstanding about the true scope of commerce at issue in this case, which led Dr. Williams to initially multiply his overcharge estimate by an incorrect volume of commerce.” Plaintiffs’ Response to Williams Motion at 2-3. According to Plaintiffs, this “update[d] damages calculation us[es] the same methodology,” “contains no new analysis,” and was the only change to the report; “the remainder of the methodology utilized by Dr. Williams in the Williams Merits Report remained unchanged.” Id. at 3. Plaintiffs contend the Williams Errata is a timely, and indeed required, supplemental disclosure under Rule 26(e). Id. at 3-9. Even if the Williams Errata was untimely, say Plaintiffs, the delay was substantially justified or harmless. Id. at 9-15. Replying, Defendants contend that Plaintiffs have not justified their more than 18-month delay in submitting the Williams Errata, and it does not constitute a supplemental disclosure under Rule 26(e). Reply at 2-5. In support, Defendants first argue that Plaintiffs had in their possession at least 13 documents by 2016 “showing that the GfK data did not include internet sales.” Id. at 3 (citing Hatch Decl. ¶ 2, Exs. 2-14). Second, Defendants state that the December 4, 2019 declaration by Dr. Baye “was not a disclosure of new affirmative opinions for trial” and “never mentions GfK data at all,” so there is no way Dr. Williams could have premised his errata on December 4, 2019 declaration. Id. at 4 (emphasis and citation omitted). And third, Defendants argue that even if Dr. Baye's December 4, 2019 declaration somehow prompted the Williams Errata, there was an almost 2-month delay in serving the Williams Errata without any explanation. Id. Even if viewed under Rule 26(e) as a supplement, argue Defendants, the Williams Errata is untimely. Id. at 5-7. And, if Plaintiffs are permitted to present Dr. Williams's new estimates at trial, Defendants contend that fairness requires allowing Defendants’ experts the opportunity to submit updated responsive opinions for trial especially because a number of them relied on Dr. Williams's initial damages calculations “as a starting point to emphasize additional problems with his computations.” Id. at 8. Plaintiffs’ Sur-reply emphasizes that in their view, the Williams Errata makes a simple mathematical change that “corrected the volume of commerce and then applied the same damages methodology to the new volume of commerce.” Sur-reply at 2. Plaintiffs also argue the Williams Errata was timely under Rule 26(e), and alternatively, that it was either substantially justified or harmless. Id. at 4-8. Finally, Plaintiffs contend any prejudice can be cured now that the trial has been postponed. Id. at 8. 2. Discussion As relevant here, under the Federal Rules of Civil Procedure (“Rule(s)”), a party must disclose an expert report that contains “a complete statement of all opinions the witness will express and the basis and reasons for them” as well as “the facts or data considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). If a court orders that the disclosure be done by a certain date, that is the date that governs this disclosure. Fed. R. Civ. P. 26(a)(2)(D). But, Rule 26(e) requires that any party who has made this type of disclosure “must supplement or correct its disclosure or response ... in a timely manner if the party learns in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). For expert witnesses, this duty “extends both to information included in the report and to information given during the expert's deposition” and “must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26 (e)(2). *3 A party who fails to disclose under Rule 26(a) or (e) “is not allowed to use that information or witness ... at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “In addition to or instead of this sanction,” however, there are a number of others the Court can impose, including payment of reasonable attorney's fees caused by the failure. Fed. R. Civ. P. 37(c)(1)(A). Defendants essentially characterize the Williams Errata as something more than a supplement under Rule 26(e), and they contend that it has been submitted far too late. The undersigned finds, however, that the Williams Errata is more akin to a supplement under Rule 26(e) in that it corrects that data considered by Dr. Williams in forming his opinions, and it revises the opinions using the correct data. See Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii), 26(e). The resulting millions more in alleged damages is a consequence of including internet sales data, not of different formulas or opinions. See, e.g., Kaleta v. City of Anna Maria, No. 8:16-cv-347-T-27AAS, 2017 WL 6261526, at *1 (M.D. Fla. Oct. 6, 2017) (denying a motion to strike when “amendments to ... experts’ report did not change the basis and reasons for their opinions, but rather changed specific amounts due to calculating errors”). And, the Court need not decide the questions of whether the disclosure was timely and when it should have been made, because even assuming it was not timely, given all of the circumstances, the undersigned would not preclude Dr. Williams from testifying at trial to the information set forth in his errata. At the end of the day, the untimeliness is harmless given the current status of the case (essentially in limbo because of the pandemic) and with the following safeguards to ensure Defendants are not prejudiced. First, Defendants may re-depose Dr. Williams if they so choose. Second, Defendants may serve their own expert revisions based solely on the revisions Dr. Williams made. These matters shall be concluded no later than January 29, 2021. Defendants’ Williams Motion, therefore, is due to be DENIED in its entirety. B. Plaintiffs’ McClane Motion 1. Arguments Plaintiffs seek an Order compelling Defendants to produce a supplemental expert report from Dr. McClane; produce documents from Dr. McClane's records that support or underlie his opinions; and produce Dr. McClane for a remote deposition. Plaintiffs’ McClane Motion at 11. Plaintiffs state that Defendants served five supplemental expert reports in October 2019, each of which relying “on new opinions that Defendants’ industry expert, Dr. McClane, purportedly shared with them during recent phone calls, which Defendants and their experts call ‘interviews’ (the ‘McClane Interviews’).” Id. at 1. Dr. McClane did not submit a new report, and Plaintiffs contend his “new opinions” were not disclosed in his original March 30, 2018 expert report (the “McClane Report”). Id. at 1-2. Responding, Defendants contend that Dr. McClane offered no new opinions during the McClane Interviews. Defendants’ Response to McClane Motion at 1. Defendants acknowledge their five supplemental expert reports contained “analyses of [another expert's (Dr. Solow's)] market definition opinion,” which they did in part by speaking “with Dr. McClane about his knowledge of and experience with fitting contact lenses—topics that Dr. McClane already addressed in his 2018 expert report and deposition, and that Defendants’ economists cited accordingly.” Id. at 2. Defendants point out that Plaintiffs had “a full and fair opportunity to explore the phone calls the economists had with Dr. McClane” during the expert economists’ depositions (that were occurring the week Defendants responded to the instant Motion). Id. Finally, Defendants represent that Dr. McClane's trial testimony will be limited to what he said in his report and in his deposition. Id. at 2 (quotation and citation omitted). According to Defendants, “Dr. McClane will not offer new opinions at trial, nor will Defendants ask their economic experts to recite new opinions from Dr. McClane during their testimony at trial.” Id. at 3. 2. Discussion *4 Having thoroughly reviewed the parties’ papers, supporting documents, and pertinent parts of the record, the undersigned is convinced that Dr. McClane has satisfied his disclosure obligations under Rule 26, and no further report, discovery, or deposition is warranted at this time. The matters he addressed in the McClane Interviews and relied upon by Defendants’ economic experts are not new opinions. These matters relate to opinions he gave in the McClane Report and his deposition, matters that Defendants’ economists sought to clarify through conversations. As to the discovery sought, it appears Dr. McClane's discussions referred generally to his experiences; to require him to produce document discovery on these experiences would be impractical. And, importantly, his trial testimony will be limited to what he said in his report and what he testified about in his deposition. Given the circumstances, and for the reasons set forth more fully in Defendants’ Response to Plaintiffs’ McClane Motion, Plaintiffs’ McClane Motion is due to be DENIED. III. Conclusion After due consideration, it is ORDERED: 1. Defendants’ Motion to Strike Plaintiffs’ Submission of Supplemental Expert Disclosure from Michael A. Williams in Violation of the Court's January 12, 2018 and January 16, 2020 Orders (Doc. No. 1153) and Plaintiffs’ Motion to Compel Discovery From Defendants’ Industry Expert, Dr. John McClane (Doc. No. 1190) are DENIED. 2. Defendants may re-depose Dr. Williams if they so choose. Defendants may also serve their own expert revisions based solely on the revisions Dr. Williams made in the Williams Errata. These matters shall be concluded no later than January 29, 2021. DONE AND ORDERED in Jacksonville, Florida on December 29, 2020. Footnotes [1] This motion was originally brought by Defendants ABB Optical Group, LLC; Alcon Vision, LLC; and Johnson & Johnson Vision Care, Inc. See Defendants’ Williams Motion at 1. Since the filing of the Motion, ABB Optical Group, LLC has settled with Plaintiffs, and the Court has preliminarily approved the settlement. See Order (Doc. No. 1224), entered November 13, 2020.