Precedential No. 5: Prompt Supplementation of Expert Disclosure Defeats Motion to Exclude Testimony, Says TTAB

In this straightforward procedural decision, the Board denied Petitioner AOG's motion to exclude Respondent's expert witness, ruling that Respondent HFM had cured any deficiencies in its expert disclosure by prompt supplementation. General Council of the Assemblies of God dba Gospel Publishing House v. Heritage Music Foundation, 97 USPQ2d 1890 (TTAB 2011) [precedential].


Respondent served its expert disclosures in timely fashion under Rule 2.120(a)(2), thirty days prior to the close of discovery. One week later, Petitioner moved to "strike" Respondent's expert witness testimony [i.e., exclude it, since the testimony hadn't been given yet] on the ground that the disclosure failed to comply with FRCP 26(a)(2): it was not signed by the expert, did not include a list of her publications (it turned out there were none), did not include a list of cases in which she had testified (one), and did not state her compensation ($750). In response, Respondent provided the missing information and argued that the original omission was harmless under FRCP 37(c)(1).

The Board ruled in favor of Respondent:

In this case, respondent supplemented its expert disclosure as soon as the deficiencies were brought to its attention. There are no last-minute changes, the discovery period is still open, and there is no disruption to trial. *** Here, prompt supplementation of the disclosure resolves the problem so that the Board need not consider the question under the Fed. R. Civ. P. 37(c)(1) standard, whether the omissions were substantially justified or harmless.

There is no requirement that a party notify the Board that it has served expert disclosures. However, if either party needs additional time for discovery, they "may inform the Board of the timely expert disclosures and demonstrate good cause for an extension or suspension of the discovery period."

Petitioner also challenged the expert's qualifications as an expert, but the Board refused to consider that issue at this time: "The Board does not hear motions in limine and the qualifications of respondent's witness is a subject that can be raised later, at an appropriate time."

Text Copyright John L. Welch 2011.