Commercial Litigation and Arbitration

Experts — Rule 26(e)(2) Duty to Supplement Expert Report or Deposition Cannot Be Used to “Sandbag One’s Opponent” and Introduce New Opinions after Court-Ordered Deadline — Rule 37(c)(1) Preclusion Applies — Good Quote

Stuhlmacher v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 164722 (N.D. Ind. Nov. 19, 2012) (note: This LEXIS citation is subject to change when the opinion is annotated and Shepardized by LEXIS):

Federal Rule of Civil Procedure 26(a)(2)(D) states that a party must make expert disclosures "at the time and in the sequence that the court orders." If the court does not set a date, the parties must make their expert disclosures at least 90 days before trial or "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identi-fied by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure." Rule 26(a)(2)(D)(ii). The parties have a duty to supplement any incorrect or incomplete information that was provided in an expert's report or deposition. Rule 26(e)(2). Any supplemental information must be disclosed by the time the party's pretrial disclosures are due. Rule 26(e)(2).

The court treats new information separately from supplemental information. Trinity Homes, LLC v. Ohio Casualty Insurance Co. Group, 2011 WL 2261297, *3 (S.D. Ind. June 8, 2011); Carter v. Finely Hospital, 2003 WL 22232844, *2 (N.D. Ill. Sept. 22,2003). "It is disingenuous to argue that the duty to supplement under Rule 26(e)(1) can be used as a vehicle to disclose entirely new expert opinions after the deadline established by the court under Rule 26(a)(2)(c). This is particularly true where, as here, the materials on which the new expert opinions are based were available to the Defendant prior to Plaintiff deposing her expert witness." Carter, 2003 WL 22232844 at *2. "[A]n expert report that discloses new opinions is in no way a mere supplement to a prior report." Trinity, 2011 WL 2261297 at *3. New opin-ions advanced after the court ordered deadline are a violation of the scheduling order. Carter, 2003 WL 22232844 at *2.

Federal Rule of Civil Procedure 37(c)(1) states that a party who fails to disclose information required by Rule 26(a)(2) or 26(e)(1) is prohibited from using the evidence at trial unless such failure was harmless or justified. The burden to show that the reports were supplements rather than new reports, or that late disclosure of a new expert opinion was substantially justified or harmless, is on the party who either missed the deadline or is seeking to supplement the report. Trinity, 2011 WL 2261297 at *3. The court must consider the following four factors when determining whether the untimely disclosure is harmless and deciding whether to prohibit late disclosure: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the [a]bility of the party to cure the prejudice; (3) the likelihood of disruption at trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Trinity, 2011 WL 2261297 at *4; Carter, 2003 WL 22232844 at *2 (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).

The parties dispute whether the information contained in Dr. Conry's supplemental report constituted a new opinion. It was Dr. Conry's opinion throughout the course of litigation that the ladder was not built according to the design specifications. ***

Although Dr. Conry maintains that the incorrect rivets were used in his supplemental report, he has now advanced the theory that the rivets were wrong for a new reason, their size. Although Rule 26(e) "does not itself define the word 'supplement' except in terms of requiring a timely supplement to fix a discovery response that is incorrect or incomplete in a material respect, common sense suggests (and numerous decisions confirm) that an expert report that discloses new opinions is in no way a mere supplement to a prior report." Trinity, 2011 WL 2261297 at *3 (citing Barlow v. General Motors Corp., 595 F.Supp.2d 929, 935-36 (S.D. Ind. 2009); In re Ready-Mixed Concrete Antitrust Litigation, 261 F.R.D. 154, 159 (S.D. Ind. 2009);Welch v. Eli Lilly & Co., 2009 WL 700199, *4 (S.D. Ind. March 16, 2009); Allgood v. General Motors Corp., 2007 WL 647496, *3 (S.D. Ind.Feb. 2, 2007)). Dr. Conry's report does not correct or enhance his pre-existing theory. Rather, it puts forth a new potential cause for the incident. The information on which Dr. Conry based his opinion was available prior to the defendants deposing him, and the plaintiffs have given no explanation for the late addition to the report. A litigant cannot use a supplemental report to "sandbag one's opponent with claims and issues which should have been included in the expert witness' report." In re Ready-Mixed Concrete, 261 F.R.D. at 159.

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