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Olson v. Nieman's Ltd.5/28/1998
eman to disclose any expert witnesses. In April 1996 Nieman moved to extend the expert witness disclosure deadline. Nieman sought to include an additional patent expert, Laramie E. Asken.
The district court denied the motion because it found no good cause for the late disclosure, noting that Nieman had been in contact with Asken since June 1994. The court also noted that such a late filing would prejudice Olson.
The case proceeded to trial during which the district court, over Nieman's objections, admitted testimony from two of Olson's experts. One expert testified about the patentability of Olson's idea. The other testified about damages Olson allegedly suffered because of Nieman's disclosure of Olson's device.
Olson displayed his device to the jury. The device worked as he said it would.
The district court overruled Nieman's motion for directed verdict at the close of Olson's evidence and again at the close of all the evidence. The court then submitted three theories of recovery: breach of contract, misappropriation of a trade secret, and misappropriation of intellectual property. The jury answered interrogatories, finding that Olson proved all three theories. The jury also answered a special interrogatory, finding that Nieman's misappropriation of Olson's trade secret was "willful and malicious." In addition, the jury answered an interrogatory, finding the damages to be $650,000.
Over Olson's objection, the district court then submitted a supplemental special interrogatory that would allow the jury to allocate the $650,000 among Olson's three theories. The jury apportioned all of the $650,000 to Olson's misappropriation-of-trade-secret claim.
Nieman then moved for a judgment notwithstanding the verdict or, in the alternative, for new trial. Later, the court overruled Nieman's motions. The court, however, did set aside the verdict for misappropriation of intellectual property, concluding that such a theory "is not recognized as a viable cause of action in Iowa."
In addition, the court denied Olson's motion for exemplary damages and attorney fees pursuant to Iowa Code sections 554.4(2) and 550.6(3).
Nieman appealed and Olson cross-appealed.
I. Issues on Appeal.
A. Failure to extend expert disclosure deadline. Nieman first contends the district court abused its discretion by refusing to extend the time in which it could disclose its expert witness on patentability, Laramie E. Asken. Nieman argues that it had good cause to disclose Asken two months after the disclosure deadline because of the complexity and time consuming nature of patent searches and because of the issue's vital importance to Olson's damages claim. Nieman insists that Olson would have suffered no prejudice from the late disclosure because Nieman had claimed the existence of prior art in its original expert witness disclosure.
On August 24, 1995, the district court entered a pretrial conference scheduling order pursuant to Iowa Rule of Civil Procedure 136, setting the following deadlines for disclosure of expert witnesses: Olson's by January 2, 1996; and Nieman's by February 6, 1996. In addition, the order set March 15, 1996, as the deadline for discovery and May 29, 1996, as the trial date. Counsel for both parties participated in the pretrial conference.
One month before this order, Nieman filed a designation of expert witnesses listing three experts. Asken was not among them. Nieman also noted, "Defendant will supplement this list of expert witnesses, as may, from time to time, be required." Nieman's request to include Asken as an expert witness was not, however, filed until April 9, 1
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