Commercial Litigation and Arbitration

Experts — Second Report Not “Supplemental” within Rule 26(e)(1), Just Untimely

From Welch v. Eli Lilly & Co. , 2009 U.S. Dist. LEXIS 21417 (S.D. Ind. Mar. 16, 2009):

Plaintiffs' claim that Dr. Seberhagen's new report is merely a supplement rings hollow. Rule 26(e) provides that a party must supplement or correct a disclosure or response "if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. P. 26(e)(1)(A). "It does not give the producing party a license to disregard discovery deadlines and to offer new opinions under the guise of the supplement label." Allgood v. Gen. Motors Corp., No. 1:02-cv-1077-DFH-TAB, 2007 U.S. Dist. LEXIS 8123, at *10 (S.D. Ind. Feb. 2, 2007) (citing Solaia Tech. LLC v. Arvin Meritor, Inc., 361 F. Supp. 2d 797, 806 (N.D. Ill. 2005) (citing Coles v. Perry, 217 F.R.D. 1, 3 (D.D.C. 2003) (striking late-filed report styled as a "supplemental opinion")). See also Metro Ford Truck Sales, Inc. v. Ford Motor. Co., 145 F.3d 320, 324 (5th Cir. 1998) (affirming exclusion of late report presented as "supplement": "The purpose of supplementary disclosures is just that — to supplement. Such disclosures are not intended to provide an extension of the expert designation and report production deadline."); Reid v. Lockheed Martin Aeronautics Co. , 205 F.R.D. 655, 662 (N.D. Ga. 2001) (stating that Rule 26(e) imposes duty on producing party; it does not give that party a right to rely on supplements to produce information required by earlier deadline); Keener v. United States, 181 F.R.D. 639, 640-41 (D. Mont. 1998) (excluding defendant's late attempt to present "supplement" with the substantive opinions in the case); Gilbane Bldg. Co. v. Downers Grove Cmty. High Sch., No. 02 C 2260, 2005 U.S. Dist. LEXIS 43231, 2005 WL 838679, at *9 (N.D. Ill. Apr. 5, 2005) (rejecting attempt to "supplement" with an entirely new subject and analysis).

Treating Dr. Seberhagen's new report as merely a supplemental report would, as Defendant points out, cause further delay, because Defendant would certainly have the right to conduct discovery on these new analyses. Certainly, to find that Dr. Seberhagen's new report containing brand new analyses was nothing more than a supplement

would create a system where preliminary reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could supplement existing reports and modify opinions previously given. This practice would circumvent the full disclosure requirement implicit in Rule 26 and would interfere with the Court's ability to set case management deadlines, because new reports and opinions would warrant further consultation with one's own expert and virtually require new rounds of depositions.

Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003) (striking supplemental report with opinions broader and deeper than and different from those provided in original timely report) (quotation and citation omitted). The original expert deadline was the time for Plaintiffs to have provided a complete statistical analysis based on the data they had. The Court cannot countenance the circuitous process invoked by Plaintiffs with their supplement.

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