A hearing on these Daubert motions is currently scheduled for Monday, May 17, 2021. The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), determines the matters are appropriate for resolution without oral argument, submits the motions on the parties' papers, and vacates the hearing.[2] For the reasons below, the Court denies the parties' Daubert motions.

Plaintiff Scripps Health is a nonprofit health care system with four hospitals and twenty-eight outpatient facilities. (Doc. No. 124-2 at 1 ¶¶ 1-2; Doc. No. 132-1, Thomas Decl. ¶ 2.) Defendant nThrive is a Revenue Cycle Management (“RCM”) vendor. (Doc. No. 124-2 at 1-2 ¶ 3.) RCM services include coding, billing, and collections of accounts receivables for health care organizations. (Id.)

On December 22, 2011, Scripps Health and MedAssets Net Revenue Systems, LLC entered into an agreement entitled “Master Agreement Between Scripps Health and MedAssets Net Revenue Systems, LLC.” (Doc. No. 124-4, Ex. 4.) In 2015, nThrive was formed through the merger of several RCM vendors, including MedAssets.[3] (Doc. No. 137 at 4 (citing Doc. No. 124-4, Ex. 12 at 38).) On September 25, 2017, Scripps Health and nThrive entered into a further agreement entitled “Third Amendment to the Master Agreement Between Scripps Health and nThrive Revenue Systems, LLC.” (Doc. No. 124-4, Ex. 3.)

On April 24, 2019, Scripps Health filed a complaint against nThrive and Formativ Health, alleging claims for: (1) fraud and deceit; (2) negligent misrepresentation; (3) aiding and abetting fraud; (4) conspiracy to commit fraud; (5) intentional interference with contractual relations; (6) intentional interference with prospective economic advantage; (7) breach of contract; (8) breach of the covenant of good faith and fair dealing; (9) negligence; (10) unjust enrichment; (11) demand for accounting; and (12) unfair business practices in violation of California Business and Professions Code § 17200 et seq. (Doc. No. 1, Compl.) In the complaint, Scripps Health alleges that nThrive did not perform the services required under the agreement in accord with contractual or industry standards. (Id. ¶ 39.) Scripps Health further alleges, among other things, that nThrive “secretly and surreptitiously assigned, subcontracted, and/or delegated” some or all of its obligations under the agreement to third-party Formativ Health, despite the inclusion of an anti-assignment clause in the agreement. (Id. ¶¶ 42-44.)

*2 On June 28, 2019, Formativ Health filed an answer to the complaint. (Doc. No. 8.) On July 1, 2019, nThrive filed an answer to the complaint and counterclaims against Scripps Health, alleging counterclaims for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) negligent misrepresentation; and (4) unjust enrichment. (Doc. Nos. 11, 12.) On September 3, 2019, the Court granted in part and denied in part Scripps Health's motion to dismiss. (Doc. No. 35.) Specifically, the Court dismissed nThrive's counterclaim for negligent misrepresentation without prejudice and with leave to amend, and the Court denied the remainder of Scripps Health's motion to dismiss. (Id. at 9.)

On October 3, 2019, nThrive filed its first amended counterclaims, alleging the same four counterclaims. (Doc. No. 40.) On November 13, 2019, the Court granted Scripps Health's partial motion to dismiss, and the Court dismissed nThrive's counterclaim for negligent misrepresentation with prejudice. (Doc. No. 50 at 7.)

By the present Daubert motions, nThrive moves: (1) to exclude certain opinions offered by Scripps Health's damages expert Brian Bergmark; and (2) to exclude the opinions of Scripps Health's non-retained experts. (Doc. Nos. 117, 118.) And Scripps Health moves: (1) to exclude certain opinions offered by nThrive's expert Charlotte Kohler; and (2) to exclude certain opinions offered by nThrive's expert Robert Taylor. (Doc. Nos. 110-1, 113-1.) The Court addresses each of these motions in turn below.

1. Legal Standards for a Daubert Motion

When considering expert testimony offered pursuant to Rule 702, the trial court acts as a “gatekeeper” by “making a preliminary determination of whether the expert's testimony is reliable.” Elsayed Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002); see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999); Daubert, 509 U.S. at 597. Under Rule 702 of the Federal Rules of Evidence, a court may permit opinion testimony from an expert only if “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” The test for reliability of expert testimony is flexible and depends on the particular circumstances of the case. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013); see City of Pomona v. SQMN, Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (“Under Daubert and its progeny, including Daubert II, a district court's inquiry into admissibility is a flexible one.”).

“Under Daubert, the district judge is ‘a gatekeeper, not a fact finder.’ When an expert meets the threshold established by Rule 702 as explained in Daubert, the expert may testify and the jury decides how much weight to give that testimony.” Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010). ‘ “[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology.’ ” Primiano, 598 F.3d at 564. “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Id. (citing Daubert, 509 U.S. at 594, 596); accord City of Pomona, 750 F.3d at 1044. “[T]he judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.” Alaska Rent-A-Car, 738 F.3d at 969. “Simply put, ‘[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” ’ City of Pomona, 750 F.3d at 1044 (quoting Alaska Rent-A-Car, 738 F.3d at 969–70). Further, the Ninth Circuit has explained that “Rule 702 should be applied with a ‘liberal thrust’ favoring admission.” Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014).

*3 Whether to admit or exclude expert testimony lies within the trial court's discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997); United States v. Verduzco, 373 F.3d 1022, 1032 (9th Cir. 2004) (“We ... have stressed that the ‘trial court has broad discretion to admit or exclude expert testimony’.”). The Ninth Circuit has explained that “[a] trial court not only has broad latitude in determining whether an expert's testimony is reliable, but also in deciding how to determine the testimony's reliability.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).

II. Analysis

A. Bergmark

nThrive moves to exclude certain opinions offered by Scripps Health's damages expert Brian Bergmark. (Doc. No. 117.) nThrive argues that the Court should exclude Mr. Bergmark's opinions because, in his analysis, he presents six different damages models. (Id. at 1, 12.) But there is nothing inherently improper about a damages expert presenting multiple alternative damages models to the jury. See Eldorado Stone, LLC v. Renaissance Stone, Inc., No. 04CV2562 JM(CAB), 2007 WL 2403572, at *2 (S.D. Cal. Aug. 20, 2007) (rejecting the argument that it was improper for an expert to present three alternative damages models to the jury); see also, e.g., SiOnyx LLC v. Hamamatsu Photonics K.K., 981 F.3d 1339, 1348 (Fed. Cir. 2020) (“At trial, the jury was presented with multiple damages theories ....”). And nThrive does not provide the Court with any authority to the contrary.

nThrive also argues that Mr. Bergmark's analysis should be excluded because the foundations for the six alternative damages models he proffers cannot constitute evidence as to the fact or extent of damages. (Doc. No. 147 at 1.) But “it is not the district court's role under Daubert to evaluate the correctness of facts underlying an expert's testimony.” Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949, 959 (N.D. Cal. 2014); accord i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 856 (Fed. Cir. 2010).

nThrive also criticizes Mr. Bergmark's analysis by arguing that it rests on assumption that are contrary to the evidence in the record and it relies on the opinions of Scripps Health's other experts. (Doc. No. 117 at 1, 13-15.) But neither of these is a basis for exclusion of expert testimony. “ ‘[T]he factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.’ ” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 n. 14 (9th Cir. 2004) (quoting Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004)). Thus, nThrive's challenges to the factual assumptions relied on by Mr. Bergmark are a matter for cross-examination, not exclusion. Further, “an expert can appropriately rely on the opinions of others if other evidence supports [the expert's] opinion and the record demonstrates that the expert conducted an independent evaluation of that evidence.” Mendoza v. Intuitive Surgical, Inc., No. 18-CV-06414-LHK, 2020 WL 1976472, at *7 (N.D. Cal. Apr. 24, 2020) (quoting In re Conagra Foods, Inc., 302 F.R.D. 537, 556 (C.D. Cal. 2014)); see In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 978 F. Supp. 2d 1053, 1066 (C.D. Cal. 2013).

Finally, the Court rejects nThrive's contention that the Court should exclude Mr. Bergmark's opinions because they amount to no more than basic arithmetic that the jury can perform. (See Doc. No. 117 at 12.) In sum, the Court declines to exclude the opinions of Mr. Bergmark.

B. Scripps Health's Non-Retained Experts

*4 nThrive moves to exclude the non-retained expert testimony of Chris Thomas, Curtis Medlock, Steve Byers, Richard Rothberger, Ernestina Cruz, Mindy Scher, and Paula Kascir. (Doc. No. 118 at 1-2.) nThrive argues that the testimony from these non-retained experts should be excluded because Scripps Health failed to provide a summary of facts and opinions for any of these experts as required by Federal Rule of Civil Procedure 26(a)(2)(C)(ii). (Id. at 9, 14-17.)

Under Federal Rule of Civil Procedure 26(a)(2)(B), if an expert witness is “retained or specially employed to provide expert testimony in the case,” then the expert must provide a written report containing the requirements set forth in Rule 26(a)(2)(B)(i)-(vi). Under Federal Rule of Civil Procedure 26(a)(2)(C), “if the witness is not required to provide a written report, th[e] disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”

“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); accord Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011). Nevertheless, under Rule 37(c)(1), “[t]he information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless.” Yeti by Molly, 259 F.3d at 1106. The party facing sanctions bears to burden of proving substantial justification or harmlessness. See id. Further, a district court has “particularly wide latitude” in determining whether to issue sanctions under Rule 37(c)(1). Id.

Under the Court's scheduling orders in this case, expert designations were due by October 2, 2020, and expert discovery closed on February 22, 2021. (Doc. Nos. 81, 92.) On October 2, 2020, Scripps Health served nThrive with its expert designations. (Doc. No. 86.) The designations listed each of the seven non-retained experts at issue and set forth the subject matter for their testimony. (See id. at 3-6.)

nThrive argues that these designations were insufficient to comply with Rule 26(a)(2)(C)(ii) because Scripps Health never provided Defendants with a summary of the facts and opinions to which these non-retained experts were expected to testify as required by Rule 26(a)(2)(C)(ii). (Doc. No. 118 at 9, 14-17.) In response, Scripps Health argues that the Court should reject this argument because nThrive never raised this issue with Scripps Health during the discovery period through a meet and confer or a motion to compel. (Doc. No. 135 at 3.) The Court agrees with Scripps Health.

If nThrive found the disclosures at issue to be insufficient, then it should have raised the issue during the discovery period in this case through a meet and confer. See S.D. Cal. Civil Local Rule 26.1.a (“The Court will entertain no motion pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel will have previously met and conferred concerning all disputed issues.”). But nThrive failed to do so. (See Doc. No. 148 at 2.) In light of this, the Court declines to exclude the testimony of Scripps Health's non-retained experts for failure to comply with Rule 26.[4] See Higley v. Cessna Aircraft Co., No. CV103345GHKFMOX, 2011 WL 13124622, at *1 (C.D. Cal. Dec. 12, 2011) (“To the extent defendant was dissatisfied with plaintiffs' Rule 26 expert disclosures, the proper remedy was a motion to compel plaintiffs to make further disclosures and not the instant Motion to strike Roughan's testimony.”); Merancio v. Smith & Nephew, Inc., No. 115CV00807DADEPG, 2017 WL 2257124, at *5 (E.D. Cal. May 23, 2017) (“Striking the declaration of defendant's expert under these circumstances would be far too harsh a sanction, especially when plaintiffs never diligently pursued the information they now seek to complain about.”); see also, e.g., Porchia v. Design Equip. Co., a Div. of Griffith Lab'ys, 113 F.3d 877, 882 (8th Cir. 1997) (affirming the denial of a motion to strike and exclude expert witnesses where the movant failed to “enlist the District Court's assistance” in resolving the discovery issues).

*5 In addition, nThrive argues that the testimony from Plaintiff's seven non-retained experts should be excluded because the non-retained experts are not qualified to render the opinions they intend to offer in this case. (Doc. No. 118 at 17-19.) But to support this contention, nThrive only presents arguments for why two of the non-retained experts are purportedly not qualified. (See id. at 19.) First, nThrive argues that Mr. Thomas is not qualified because he testified that he never performed an estimate of the value of accounts receivable of this type before. (Id. (citing Doc. No. 100-3, Ex. C at 49-50).) This is insufficient to justify exclusion of Mr. Thomas's testimony. The fact that Mr. Thomas might not have previously performed an estimate of the precise type at issue in this case is at best a matter for cross-examination at trial, not exclusion of his testimony.

Second, nThrive argues that Mr. Rothberger is not qualified because he testified that any valuation by him would be pure speculation. (Doc. No. 118 at 19.) This contention is not supported by the record. In the deposition testimony cited by nThrive, Mr. Rotherberger is not discussing “any valuation by him.” Rather, he explained that he did not know whether his team internally had any projections. (See Doc. No. 118-1, Ex. A at 146-47.) As such, the Court rejects nThrive's challenges to the qualifications of the non-retained experts. In sum, the Court declines to exclude the opinions of Scripps Health's seven non-retained experts.[5]

C. Kohler

Scripps Health moves to exclude certain opinions offered by nThrive's expert Charlotte Kohler. (Doc. No. 113-1.) Specifically, Scripps Health moves to exclude: (1) Ms. Kohler's opinions regarding Scripps Health's damages expert Brian Bergmark; and (2) Ms. Kohler's calculation of account “touches.” (Id. at 2.) The Court addresses each of these bases for exclusion in turn below.

With respect to Ms. Kohler's opinions regarding Mr. Bergmark, Scripps Health argues that these opinions should be excluded because they were not timely disclosed. (Doc. No. 113-1 at 4.) “Federal Rule of Civil Procedure 26(a)(2)(B) requires the parties to disclose the identity of each expert witness ‘accompanied by a written report prepared and signed by the witness.’ ” Yeti by Molly, 259 F.3d at 1106 (quoting Fed. R. Civ. P. 26(a)). Rule 26(a)(2)(D) further provides that “[a] party must make these disclosures at the times and in the sequence that the court orders.” “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Id.; accord Goodman, 644 F.3d at 827.

Nevertheless, under Rule 37(c)(1), “[t]he information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless.” Yeti by Molly, 259 F.3d at 1106. The party facing sanctions bears to burden of proving substantial justification or harmlessness. See id. Further, a district court has “particularly wide latitude” in determining whether to issue sanctions under Rule 37(c)(1). Id.

Under the Court's July 1, 2020 scheduling order, expert designations were due by October 2, 2020 and rebuttal expert designations were due by October 23, 2020. (Doc. No. 81.) On September 16, 2020, nThrive served Scripps Health with its initial expert designations stating: “Charlotte L. Kohler of Kohler HeathCare Consulting, Inc. is being designated on the subject of medical billing as well as Plaintiff Scripps Health['s] allegations and claims of damages in this case.” (Doc. No. 110-2, Ex. 12.) On October 23, 2020, nThrive served Scripps Health with its rebuttal expert designations. (Doc. No. 110-2, Ex. 13.) Those rebuttal designations listed Ms. Kohler as a rebuttal expert, but specified that she would offer rebuttal testimony as Barbara Cobuzzi and Randy Farber. (Id.) Scripps Health argues that the Court should exclude Ms. Kohler's rebuttal opinions regarding Mr. Bergmark given that nThrive did not specifically state that Ms. Kohler would offer opinions as to Mr. Bergmark in its rebuttal disclosures. (Doc. No. 113-1 at 4.)

*6 The Court, exercising its sound discretion, declines to exclude Ms. Kohler's opinions regarding Mr. Bergmark. Even assuming nThrive's rebuttal designations were insufficient, nThrive has shown that the purported failure to disclose was harmless given that Ms. Kohler was designated to offer opinions on Scripps Health's claims of damages in the initial disclosures and Scripps Health was able to depose Ms. Kohler regarding her rebuttal opinions. As such, the Court declines to exclude Ms. Kohler's opinions on this basis.

Scripps Health also argues that the Court should exclude Ms. Kohler's opinions regarding Mr. Bergmark because she does not have the same education or experience as Mr. Bergmark. (Doc. No. 113-1 at 4-5.) Scripps Health fails to identify any case law holding that in order for an expert to offer a rebuttal as to another expert's opinion, that rebuttal expert must have the same qualifications as the other expert. The evidence in the record contains Ms. Kohler's qualifications and shows that Ms. Kohler has 40 years of healthcare experience including healthcare finance, billing and management, coding, and operations. (See Doc. No. 110-2, Ex. 12 at Ex. A.) Scripps Health fails to adequately explain why these qualifications are insufficient to offer a rebuttal as to certain opinions offered by Mr. Bergmark. As such, the Court also declines to exclude Ms. Kohler's opinions on this basis.

Finally, Scripps Health argues that the Court should exclude Ms. Kohler's account “touches” analysis. (Doc. No. 113-1 at 5-9.) The contract at issue provides in a section entitled “Fees” that: “[f]or all Referred Accounts, nThrive shall receive 12.75% of Collections as a result of nThrive efforts; [and] $6 per claim flat rate for any other claim touches required of nThrive that will not result in payment.” (Doc. No. 124-4, Ex. 3 at 3, § 4(i)-(ii)). In her expert report, Ms. Kohler opines: “As part of their performance of the Contract, the Defendants collected at least $657,241.79 and performed a total of 82,855 patient account touches. Under the Contract, Scripps is to pay nThrive 12.75% of all collections and $6.00 per touch.” (Doc. No. 120, Ex. 4, Kohler Report ¶ 13.)

Scripps Health argues that Ms. Kohler's analysis is unreliable because her definition of “touches” is vague and her analysis does not comport with the terms of the parties' agreement. (Id. at 5-7.) The term “touches” is expressly contained in the contract at issue. (See, e.g., Doc. No. 124-4, Ex. 3 at 3, § 4(ii) (“$6 per claim flat rate for any other claim touches required of nThrive that will not result in payment.”).) Scripps Health argues that Ms. Kohler's “touches” analysis fails to comply with the terms of the contract because the parties' agreement “limits one touch per invoice.” (Doc. No. 113-1 at 5.) Based on the present record, the Court declines to reach the conclusion that the parties' agreement limits one touch per invoice.

Scripps Health also argues that Ms. Kohler's “touches” analysis is unreliable because she did not know whether she excluded from her calculations touches that Defendants made to accounts after they advised Scripps Health to write them off. (Doc. No. 113-1 at 8.) This is a matter better served for cross-examination of Ms. Kohler, and not exclusion of her testimony. See Primiano, 598 F.3d at 564. In sum, the Court declines to exclude the opinions of Ms. Kohler.

D. Taylor

Scripps Health moves to exclude certain opinions offered by nThrive's expert Robert Taylor. (Doc. No. 110-1 at 1.) Scripps Health argues that the Court should exclude Mr. Taylor's opinions regarding Mr. Bergmark's first through fifth calculations because Mr. Taylor failed to present a separate analysis for those calculations. (Id. at 2, 8-9; Doc. No. 155 at 2-5.)

*7 In his report, Mr. Taylor states: “Additionally, it is my opinion that the adjustments I have identified for the Bergmark Report E&Y scenario calculation also would apply to the other Bergmark Report scenarios.” (Doc. No. 120, Ex. 2 at 11.) At his deposition, Mr. Taylor explained: “[J]ust to be clear, the discrete adjustments I did make to the – to Mr. Bergmark's calculation based on the E&Y work paper, I believe as a general construct would apply to the earlier calculations that he prepared, meaning that the take-back adjustment and some additional touch fees, but the only place – but my calculations were focused on Mr. Bergmark's use of the E&Y work paper.” (Doc. No. 120, Ex. 3 at 115-16.)

The Court declines to exclude Mr. Taylor's opinions on this basis. Mr. Taylor states that it is his opinion that his analysis would also apply to Mr. Bergmark's first through fifth calculations. Scripps Health may disagree with this opinion, (see Doc. No. 110-1 at 9), but disagreement with an expert's opinion is not a basis for exclusion. See Primiano, 598 F.3d at 564 (“ ‘[T]he test under Daubert is not the correctness of the expert's conclusions ....’ ”); Clayton v. Air & Liquid Sys. Corp., No. C18-0748JLR, 2020 WL 729205, at *4 (W.D. Wash. Feb. 13, 2020) (“[T]he disagreements highlighted in [plaintiffs] motion represent ‘fodder for cross-examination’ as [plaintiff] implicitly acknowledges—not a basis for exclusion under Rule 702 or Daubert.” (citation omitted)). Further, Scripps Health has failed to provide the Court with any authority holding that in order for a rebuttal expert to criticize another expert's analysis/calculations that rebuttal expert must present his own separate analysis/calculations.

Scripps Health also argues that the Court should exclude certain opinions by Mr. Taylor because they are derived from the opinions and analysis of other experts. (Doc. No. 110-1 at 10-11; Doc. No. 155 at 5-6.)

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 978 F. Supp. 2d 1053, 1066 (C.D. Cal. 2013) (cleaned up); accord In re Bard IVC Filters Prod. Liab. Litig., No. MDL 15-02641-PHX DGC, 2017 WL 6554163, at *2 (D. Ariz. Dec. 22, 2017).

With respect to Mr. Leventhal's opinions, Scripps Health challenges Mr. Taylor's reliance on Mr. Leventhal's negative posting calculations on the grounds that Mr. Leventhal is not a designated expert in this case. (Doc. No. 110-1 at 10; Doc. No. 155 at 6.) But “[t]here is no general requirement that the underlying expert testify as well.” Toyota, 978 F. Supp. 2d at 1066; accord Bard, 2017 WL 6554163, at *2. At his deposition, Mr. Taylor explained that prior to relying on Mr. Levanthal's analysis, he engaged in his own analysis of it and spoke to Mr. Leventhal regarding the analysis at issue. (See Doc. No. 120, Ex. 3 at 53-54.) Thus, Mr. Taylor's reliance on Mr. Leventhal's analysis is permissible, and Mr. Taylor is not merely acting as a conduit for Mr. Leventhal's analysis. See Mendoza, 2020 WL 1976472, at *7 (“[A]n expert can appropriately rely on the opinions of others if other evidence supports [the expert's] opinion and the record demonstrates that the expert conducted an independent evaluation of that evidence.”).

*8 With respect to Ms. Kohler's opinions, Scripps Health challenges Mr. Taylor's reliance on Ms. Kohler's “touches” analysis for the reasons as set forth in Scripps Health's Daubert motion to exclude Ms. Kohler's testimony. (Doc. No. 110-1 at 10-11; Doc. No. 155 at 5-6.) The Court has denied Scripps Health's Daubert motion as to Ms. Kohler. See supra. As such, the Court rejects this basis for exclusion of Mr. Taylor's opinions. In sum, the Court declines to exclude the opinions of Mr. Taylor.

For the reasons above, the Court denies the parties' Daubert motions to exclude without prejudice to a contemporaneous objection at trial.

IT IS SO ORDERED.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 585 (1993).

A hearing on the parties' motions for summary judgment (Doc. Nos. 95, 98, 107) remains scheduled for Monday, May 17, 2021 at 10:30 a.m.

nThrive LLC and nThrive Inc. are effectively the same entity and both claim to be parties to and hold rights in the relevant contract. (Doc. No. 124-2, at 2 ¶ 4 .)

In addition, Scripps Health has shown that the purported disclosure failure was harmless. Scripps Health notes that nThrive deposed Mr. Thomas, Mr. Rothberger, Ms. Scher, and Mr. Medlock. (Doc. No. 135 at 4.) nThrive could have deposed Ms. Cruz, Mr. Byers, and Ms. Kascir, but nThrive chose not to do so. (Id. at 5.) In addition, Scripps Health has provided declarations from Mr. Thomas, Mr. Rothberger, Ms. Scher, and Mr. Medlock as part of its summary judgment briefing, with each declaration setting forth a summary of the witness's facts and opinions. (See Doc. Nos. 127-2, 127-3, 127-4, 127-5.) In response, nThrive argues that these declarations are “obviously inadequate.” (Doc. No. 148 at 4.) But nThrive fails to articulate precisely why these declarations are inadequate or how it has been prejudiced by the timing of them.

In its motion, nThrive also argues that the Court should exclude the lay testimony of Mr. Thomas and Mr. Rothberger. (Doc. No. 118 at 10-14; Doc. No. 148 at 5-6.) Because this argument is premised on the Court precluding Mr. Thomas and Mr. Rothberger from offering non-retained expert testimony in this case, (see id. at 1), and the Court has declined to do so, the Court rejects this additional argument for exclusion of their testimony.