United States District Court, N.D. Oklahoma
JOSEPH A. SOWELL, Plaintiff,
BOURN & KOCH, INC., and JONES & LAMSON MACHINE COMPANY, Defendants.
OPINION AND ORDER
V. EAGAN, JUDGE
before the Court is plaintiff Joseph A. Sowell's motion
(Dkt. # 28) to amend his response (Dkt. # 26) to defendant
Bourn & Koch, Inc.'s motion for summary judgment. On
February 4, 2019, Bourn & Koch filed a motion for summary
judgment (Dkt. # 25). On February 25, 2019, plaintiff filed a
response in opposition to the motion (Dkt. # 26). Bourn &
Koch filed a reply (Dkt. # 27). On April 29, 2019, plaintiff
filed a motion (Dkt. # 28) to amend his response (Dkt. # 26)
to the motion for summary judgment. Bourn & Koch filed a
response in opposition to plaintiff's motion to amend
(Dkt. # 32).
to LCvR7.2(h), “supplemental briefs are not encouraged
and may be filed only upon motion and leave of Court.”
Plaintiff seeks to amend his response to the motion for
summary judgment by adding as an exhibit the expert report of
John Green (Dkt. # 28-1). Plaintiff asserts that the Green
report “sets out the duty and negligent acts of Bourn
& Koch after it acquired Jones & Lamson intellectual
property and designs and intangible property, ” and
therefore supports plaintiff's position that there are
material facts in controversy as to plaintiff's claims of
Bourn & Koch's negligence. Dkt. # 28, at 1.
& Koch argue that the Court should deny plaintiff's
motion, because there has been no additional discovery since
the filing of plaintiff's response warranting the filing
of a supplemental brief, and plaintiff did not request
additional time to conduct discovery in order to respond to
the motion for summary judgment. Dkt. # 32, at 2. Pursuant to
the amended scheduling order (Dkt. # 21) entered on December
6, 2018, the deadline for plaintiff's expert
identification and reports was April 22, 2019. Id.
The discovery deadline is May 31, 2019, and the deadline for
filing a motion for summary judgment is July 8, 2019.
Id. Green's final expert report is dated April
22, 2019, Dkt. # 28-1, at 1, and plaintiff provided the
expert report to Bourn & Koch on that date, Dkt. # 28, at
1. Accordingly, plaintiff obtained the final expert report
and provided it to defendant in accordance with the amended
scheduling order. Although Bourn & Koch filed its motion
for summary judgment well in advance of the deadlines for
expert reports, discovery, and dispositive motions, plaintiff
was not required to obtain the final expert report or provide
it to defendant any earlier than April 22, 2019. Therefore,
the Court finds that plaintiff appropriately asks the Court
to consider the timely-submitted report in addressing the
motion for summary judgment.
& Koch also argue that the Court should deny
plaintiff's motion because the expert report contains
“inappropriate testimony from an unqualified witness on
an inappropriate topic.” Dkt. # 32, at 8. It is
well-settled that a federal court can consider only
admissible evidence in addressing a motion for summary
judgment. Gross v. Burggraf Const. Co., 53 F.3d
1531, 1541 (10th Cir. 1995). Accordingly, “the
testimony of an expert can be rejected on summary judgment if
it is conclusory and thus fails to raise a genuine issue of
material fact, ” Matthiesen v. Banc One Mort.
Corp., 173 F.3d 1242, 1247 (10th Cir. 1999), or if the
expert's opinions reach the ultimate issues of law,
Cooperman v. David, 23 F.Supp.2d 1315, 1318 (D. Wyo.
1998), aff'd, 214 F.3d 1162 (10th Cir.
In other words, in ruling on the motion for summary judgment,
the Court rejects any expert testimony that would not be
admissible at trial under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). To determine
whether and to what extent the expert's testimony is
admissible, however, the expert's report must be included
in the summary judgment record before the Court. Accordingly,
the Court finds that Bourn & Koch's argument
regarding the appropriateness of Green's testimony is not
a basis for denying plaintiffs motion to amend his response
to the motion for summary judgment.
IS THEREFORE ORDERED that plaintiff Joseph A.
Sowell's motion (Dkt. # 28) to amend his response to
defendant Bourn & Koch, Inc.'s motion for summary
judgment is granted.
IS FURTHER ORDERED that plaintiff shall immediately
file a pleading, with cover page entitled “Plaintiffs
Amended Response to Defendant Bourn & Koch's Motion
for Summary Judgment, ” with the Green report attached.
IS FURTHER ORDERED that Bourn & Koch may
supplement its reply, addressing only the Green report, no
later than seven (7) days following plaintiff s filing of the
Green report and no more than seven (7) pages in length.
IS FURTHER ORDERED that no additional ...