DUSA Pharmaceuticals, Inc. v. Biofrontera Inc. et al (D. Mass. 18-cv-10568).

This is a case involving allegations of patent infringement by Biofrontera.  Judge Stearns had previously granted DUSA’s Daubert motion and precluded Biofrontera’s damages expert from testifying on incremental costs in response to partial profit disgorgement scenarios disclosed by DUSA’s expert because Biofrontera’s expert had not disclosed an incremental cost analysis in his report.  Biofrontera tried a different approach to getting this analysis into the case by serving a supplemental report containing the analysis.  Judge Stearns granted DUSA’s motion to strike the analysis, finding that supplemental reports are permitted to fill gaps in the initial report when an expert learns of missing information, but are not permitted for the purpose of adding new analyses, opinions, or theories under the guise of supplementation.  Because the time for serving initial expert reports had passed, he struck the supplemental report as untimely. 

Judge Stearns refused, however, to strike DUSA’s lost profits computation that was also disclosed in a supplemental report.  He noted that the new calculation, which included a new deduction of the costs that would have been incurred in making the hypothetical lost sales, was required in response to Biofrontera’s Daubert motion on the issue, and that Biofrontera itself had disclosed the deduction in its own rebuttal expert report.  Further, the Court had required DUSA to adopt the deduction.  As DUSA’s supplement did not present any new analyses, theories or opinions, the supplemental report was not stricken.