United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
before the Court is the Motion for Leave to File a
Sur-Rebuttal Expert Report (Docket No. 99) filed by Defendant
Innovative Designs, Inc. (“IDI”), seeking thirty
(30) days to complete additional testing and to submit a
sur-rebuttal and/or supplemental expert report. In its
Response (Docket No. 102), the Federal Trade Commission (the
“FTC”) argues that IDI is seeking a
“do-over” expert report and maintains that the
expert rebuttal report prepared by Dr. Jonathan Malen (the
“Malen Report”) is a proper rebuttal report that
addresses and rebuts each of IDI's experts' primary
opinions. As such, the FTC argues that IDI has not met its
burden to show that it is entitled to submit a sur-rebuttal
or supplemental report in this case. (Id. at 7-9).
By rejecting IDI's motion, the FTC claims that the Court
can prevent a wasteful cycle of additional rebuttals,
depositions, and sur-rebuttals that would result from another
expert report. (Id. at 9). The Court has now
considered IDI's Motion for Leave to File a Sur-Rebuttal
Expert Report (Docket No. 99), the FTC's brief in
opposition (Docket No. 102), IDI's reply brief (Docket
No. 105), and the relevant expert reports (Docket Nos. 75-2,
99-2, 102-2). The Court heard oral argument on the Motion and
supplemental briefing on July 16, 2018. (Docket No. 106). For
the reasons that follow, the Court will grant IDI's
FACTUAL AND PROCEDURAL BACKGROUND
November 3, 2016, the FTC filed a Complaint claiming that IDI
violated several provisions of the Federal Trade Commission
Act, 15 U.S.C. § 41 et seq., through the use of
unfair and deceptive marketing and promotional activities.
(Docket No. 1). Defendant IDI began to market Insultex House
Wrap (“Insultex”) for use as a weather-resistant
barrier on exterior walls around November 2011, (Docket Nos.
1 ¶ 9; 7 ¶ 9), claiming that Insultex had the added
benefit of providing thermal insulation, (Docket Nos. 1
¶ 11; 7 ¶ 11). Insultex was initially advertised as
having an “R-3” insulative value and in 2015 a
thicker version was marketed as having an “R-6”
insulative value. (Docket Nos. 1 ¶¶ 13, 15 - 16; 7
¶ 13, 15 - 16). According to 16 C.F.R. § 460.5,
R-value measures resistance to heat flow and, when given in
labels, fact sheets, ads, or other promotional materials, it
must be based on tests done using the American Society of
Testing and Materials (“ASTM”) methods listed in
16 C.F.R. § 460.5.
contends that the R-values marketed for its Insultex wraps
were derived from testing conducted in accordance with ASTM
standards by accredited laboratories. (Docket Nos. 1 ¶
20; 7 ¶ 20). The FTC believes that independent testing
results obtained as part of an investigation indicate
otherwise, and claims that Defendant's R-value assertions
are therefore false or misleading due to a lack of valid,
objective testing data in conformity with ASTM standards.
(Docket No. 1 ¶¶ 28 - 36). The crux of the dispute
in this case requiring expert testimony is the Modified ASTM
C518 testing performed by BRC Laboratories on behalf of IDI,
its R-value results, and the actual R-value of Insultex House
August 11, 2017, the FTC submitted its case-in-chief expert
report of its designated testifying expert, Dr. David
Yarbrough. (See Docket No. 102, at 4). IDI submitted
expert reports from Scott Baumann,  Dr. Anastassios
Mavrokefalos, and Dr. Donald Garlotta on March 6, 2018.
(Id.). On May 4, 2018, the FTC submitted its
rebuttal expert reports of Dr. Yarbrough and Dr. Jonathan
Malen. (Docket No. 99). IDI now argues that,
because Dr. Malen performs “new” calculations
based upon known values and properties of Low Density
Polyethylene, IDI should be granted leave for its expert, Dr.
Mavrokefalos, to perform additional testing to rebut Dr.
Malen's opinions concerning the thermal resistance of air
gaps and thermal resistance of plastic foams in item numbers
four and five of the Malen Report. (Id., at 1).
The Malen Report is a Proper Rebuttal Report
argues that the Malen Report is not a proper rebuttal report
under Rule 26 of the Federal Rules of Civil Procedure because
it goes beyond the permissible purpose of rebuttal evidence.
It contends that the Malen Report “rehashes the issue
of the R-value of the air gap using new calculations that
should have been contained in the FTC's case-in-chief
report” and “contains new theories and
information not contained in any of the previous expert
reports relating to the ‘Thermal resistance of plastic
foams.'” (Docket No. 99, at 4).
response, FTC argues that the Malen Report is a proper
rebuttal report in compliance with the Federal Rules of Civil
Procedure because it “directly addresses and rebuts
each of IDI's experts' three primary opinions: 1)
that the R-value of air is negligible; 2) that
[Insultex's] properties as a low-density polyethylene
foam with ‘evacuated cells' (“LDPE”)
imbue it with an R-value a magnitude higher than other
insulation; and 3) that compression of the Insultex during
ASTM C518 testing returned artificially lowers
R-values.” (Docket No. 102, at 2).
Court has wide discretion in determining what evidence may be
presented on rebuttal. See United States v.
Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974).
Fed.R.Civ.P. 26(a)(2)(D)(ii) defines rebuttal experts as
presenting “evidence [that] is intended solely to
contradict or rebut evidence on the same subject matter
identified by another party . . .” See also Withrow
v. Spears, 967 F.Supp.2d 982, 1002 (D. Del. Aug. 22,
2013) (“expert reports that simply address the same
general subject matter as a previously-submitted report, but
do not directly contradict or rebut the actual contents of
that prior report, do not qualify as proper rebuttal or reply
reports.”). While the scope of a rebuttal report is
limited to the same subject matter encompassed in the
opposing party's expert reports, district courts have
been reluctant to narrowly construe the phrase “same
subject matter” beyond its plain language. See,
e.g., Pritchard v. Dow Agro Scis., 263 F.R.D.
277, 284 (W.D. Pa. 2009) (finding declaration did not include
any new opinions but rather served to further elaborate upon
the initial opinions expressed in the report and rebut the
defense experts' opinions); Safe Auto Ins. Co. v.
State Auto. Mut. Ins. Co., No. 2:07-CV-01121, 2009 WL
10679570, at *2 (S.D. Ohio Mar. 4, 2009); TC Sys., Inc.
v. Town of Colonie, New York, 213 F.Supp.2d 171, 180
(N.D.N.Y. 2002) (stating that the court “is reluctant
to narrowly construe the phrase ‘same subject
matter' beyond its plain language” because doing so
would “impose an additional restriction on parties that
is not included in the Rules”).
term “same subject matter” is not defined in the
Advisory Committee Notes to Rule 26 and there is little case
authority on the issue. See Safe Auto Ins. Co., 2009
WL 10679570, at *2; TC Sys., Inc., 213 F.Supp.2d at
180. However, the courts that have interpreted the term
“same subject matter” in this regard have done so
broadly, requiring that a rebuttal report simply address the
same topic as the affirmative report, as opposed to the same
topic and methodology the affirmative expert relied
on. See, e.g., TCL Commc'ns Tech. Holdings
Ltd. v. Telefonaktenbologet LM Ericsson, 2016 WL
7042085, at *4 (C.D. Cal. Aug. 17, 2016) (“However,
nothing about Rule 26 or the nature of rebuttal prohibits
offering independent opinions or utilizing other
methodologies. In fact, offering a different, purportedly
better methodology is a proper way to rebut the methodology
of someone else.”); Associated Elec. Gas Ins.
Servs. v. Babcock & Wilcox Power Generation Grp.,
Inc., No. 3:11-CV-715-JCH, 2013 WL 5771166, at *3 (D.
Conn. Oct. 24, 2013) (“Although [the rebuttal report]
does offer new analysis and calculations, the Court finds
that such were undertaken in an effort to rebut and/or
contradict the theory posted by [the affirmative expert], and
are therefore proper.”) (citing Allen v. Dairy
Farmers of America, Inc., 2013 WL 211303, at *5 (D. Vt.
Jan. 18, 2013) (“It is also acceptable for an expert to
use new methodologies in a rebuttal for the purpose of
rebutting or critiquing the opinions of Defendants'
expert witness.”)); Safe Auto Ins. Co., 2009
WL 10679570, at *2 (citing TC Sys., Inc., 213
F.Supp.2d at 180).
motion, IDI contends that Dr. Malen's report is not a
proper rebuttal report because it introduces new theories and
calculations as to the R-value and air gap that were not
previously raised in the FTC's case-in-chief report.
(Docket No. 99, at 6). However, to the extent Dr. Malen's
report offers new analysis and calculations, the Court finds
that it is proper for Dr. Malen to utilize new calculations
or methods in an effort to rebut and/or contradict the
theories posited by IDI's experts. (Docket No. 102, at
2). As this Court has noted, rebuttal evidence is properly
admissible when it will explain, repel, counteract or
disprove the evidence of the adverse party. Wonderland
Nurserygoods Co. v. Thorley Indus., LLC, 2014 U.S. Dist.
LEXIS 8185, *6 (W. D. Pa. January 23, 2014) ...