Commercial Litigation and Arbitration

Standards for Exclusion of Untimely Expert Report under Rule 37(c)(1) — Standards for Abuse of Discretion Review — Internally Inconsistent and Unsupported Expert Testimony Excluded

Hunt v. CNH Am. LLC, 2013 U.S. App. LEXIS 2533 (2d Cir. Feb. 6, 2013):

A. Exclusion of Holcomb's Supplemental Report

Hunt contests the District Court's decision to exclude a supplemental expert report, submitted pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), which was disclosed after the close of expert discovery and without any request for an extension of the deadline. The District Court excluded Holcomb's supplemental report pursuant to Federal Rule of Civil Procedure 37(c)(1), which provides that "a party [that] fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."

We review the District Court's exclusion of testimony under Rule 37(c)(1) for abuse of discretion. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (A district court abuses its discretion if it "base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions." (internal citations and quotation marks omitted)). "In determining whether the district court acted within its discretion, this Court considers (1) the party's explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance." Patterson, 440 F.3d at 117 (internal quotation marks and brackets omitted). ,,The District Court carefully considered the appropriate factors and concluded that exclusion of the evidence was warranted under Rule 37(c)(1). Indeed, Hunt does not claim that the District Court made any legal error reaching this decision; he simply disagrees with the outcome. We cannot say that the District Court rested its ruling on "a clearly erroneous assessment of the evidence" or made "a decision that cannot be located within the range of permissible decisions." In re Sims, 534 F.3d at 132. Accordingly, we conclude that the District Court did not abuse its discretion in excluding Holcomb's supplemental report.

B. Exclusion of Holcomb's Testimony

The District Court excluded the remainder of Holcomb's testimony pursuant to Federal Rules of Evidence 702 and 403. "[T]he district court has a 'gatekeeping' function under Rule 702--it is charged with 'the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert, 509 U.S. at 597). The District Court must therefore determine whether "(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." Fed. R. Evid. 702. "A district court's exclusion of expert testimony is reviewed for abuse of discretion, and a decision to admit or exclude expert scientific testimony is not an abuse of discretion unless it is manifestly erroneous." Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 160-61 (2d Cir. 2012) (internal quotation marks and brackets omitted).

Based on a careful and comprehensive review of his testimony and report, the District Court concluded that "Holcomb's theory of design defect [was] not based on sufficient data and [was] not the product of reliable principles and methods." Hunt, 857 F. Supp. 2d at 343. Specifically, the District Court found that Holcomb's theory relied on assumptions not based on evidence and was "unsupported and internally inconsistent." Id. at 343; see id. at 343-47. Because "his opinions concerning the alleged design defect and causation [were] speculative and not well supported," they were excluded under Rule 702, and, because their "probative value [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury," they were also excluded under Rule 403. Id. at 347.

Hunt argues that the District Court "abused its discretion by excluding the opinion evidence of Plaintiff's expert in its entirety, thereby depriving Plaintiff of his right to have a jury 'decide among the conflicting views of different experts.'" Appellant Br. 19 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999)). Hunt does not, however, point to any legal error by the District Court, nor does he identify any factual determination that could be deemed clear error. In short, nothing about the District Court's careful analysis of Holcomb's theory was "manifestly erroneous," Chin, 685 F.3d at 161 (internal quotation marks omitted), and its order excluding the expert evidence must therefore be affirmed.

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