26(a)(2)(B) Expert Reports — Permissible Supplementation or Clarification v. Impermissible Sandbagging — Point of Rule Is to Eliminate Need for Deposition and Risk of Ambush

Eiben v. Gorilla Ladder Co., 2013 U.S. Dist. LEXIS 59961 (E.D. Mich. April 22, 2013):

The Sixth Circuit has held that "[u]nder Rule 26(a), a 'report must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.'" R C. Olmstead, Inc. v. C.U. Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir.1998) (citing Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir.1995)).

A violation of Rule 26 gives rise to the application of Rule 37(c) (1), which provides that "[i]f a party fails to provide information... as required by Rule 26(a) or (e), the party 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." The Sixth Circuit has interpreted this rule as requiring the "automatic and mandatory [exclusion of non-disclosed evidence] unless non-disclosure was justified or harmless." Dickenson v. Cardiax and Thoracic Surgery of Eastern Tenn., 388 F.3d 976, 983 (6th Cir.2004) (quoting Musser v. Gentiva Health Servs., 365 F.3d 751, 758 (7th Cir.2004)); R.C. Olmstead, supra, 606 F.3d at 271 ("Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified. " Id. (citations omitted)). The burden is on the potentially sanctioned party to prove harmlessness. Id. at 271-272. "District courts have broad discretion to exclude untimely disclosed expert-witness testimony." Pride v. Bic Corp., 218 F.3d 566, 578 (6th Cir.2000) (citing Trilogy Comm'n v. Times Fiber Comm'n, 109 F.3d 739 (Fed.Cir.1997)). Where a plaintiff does not make any argument of harmlessness or justification, a district court does not abuse its discretion in excluding the expert's report. R.C. Olmstead, supra.

As in R.C. Olmstead, supra, Plaintiff here, makes no claim of harmlessness or justification for his untimely attempt to correct, by way of an affidavit, the deficiencies in his expert's report upon which Defendant's motion for summary judgment is predicated. He states only that the Court should allow and consider Morse's Affidavit because it "merely gives further clarification and specificity [to his report] in light of Defendants' attacks." See Plaintiff's Response to Motion to Strike, p. 4.

Contrary to Plaintiff's assertions, Morse's Affidavit does much more than merely "clarify" his report. For example, Morse provides for the first time in Paragraphs 2-13 of his Affidavit, his qualifications to testify as an expert on ladder design and ladder safety warnings. There is no mention whatsoever in Morse's original report of his qualifications, other than the notation on the cover page of the report that he is a "mechanical engineering consultant." See Morse Report, Plaintiff's Ex. C; Defendants' Motion in Limine, Ex. A. Morse further provides for the first time in Paragraphs 26-37 of his Affidavit, specific examples of alternative ladder foot designs which Morse claims would wear more slowly that the AL-13's feet and, hence, are safer than the foot design of the AL-13, and which he maintains are feasible for use on the AL-13. The discussion of the foot designs of these five other ladders presently on the market is far more than mere "clarification" of the bare assertion in his report that, "[t]here are many safer alternative designs for ladder feet which would have prevented this ladder incident." See Morse Expert Report, p. 11. His Affidavit is essentially a "new" expert report.

Plaintiff argues that Morse's Affidavit should not be stricken because it merely provides "supplementation" of his original report. Although Fed. R. Civ. P. 26(e) requires a party to "supplement or correct" his disclosure upon information later acquired, "[i]t is not mere 'supplementation' when a party submits a manifestly incomplete report lacking analysis or a supporting rationale, waits for the summary judgment deadline to pass, and then submits a fuller report that contains actual reasoning." Ullman v. Auto-Owners Mut. Ins. Co., 2007 WL 1057397 at *3 (S.D. Ohio 2007). Rule 26(e) simply does not contemplate supplying wholly missing information such as found here. As the court held in Allgood v. General Motors Corp., 2007 WL 647496 (S.D. Ind. 2007), Rule 26(e) "does not give the producing party a license to disregard discovery deadlines and to offer new opinions under the guise of the supplement label." Id. Moreover, given that all of the information upon which Morse bases his "supplementation" was available at the time he prepared his original expert report, Morse's Affidavit cannot be said to "include information thereafter acquired" or to be a genuine attempt to remedy previously "incomplete or incorrect" information. Fed. R. Civ. P. 26(e)(1).

The narrow reasons for permissible supplementation under Rule 26(e)(1) simply do not exist here. This is not a situation in which a party sought to supplement a report to correct a late-in-the-day error or inaccuracy in its reasoning. See, e.g., Minebea Co., Ltd. v. Papst, 231 F.R.D. 3 (D.D.C.2005) (permitting error correction via supplementation). Nor is this a case in which supplementation would serve as a response to an opposing expert's pointing out gaps in Morse's chain of reasoning. See, e.g., Miller v. Pfizer, Inc ., 356 F.3d 1326, 1332 (10th Cir.2004). This is not even a case in which supplementation would reflect an expert's changed opinion. See Fed. R. Civ. P. 26 Advisory Committee Notes, 1993 Amendments, Subdivision (e) ("changes in the opinions expressed by the expert whether in the report or at a subsequent deposition are subject to a duty of supplemental disclosure under [Rule 26(e)(1) ]").

By seeking to transform a conclusory report via supplementation, Plaintiff is in effect essentially and impermissibly presenting a new opinion. See Minebea Co., Ltd., 231 F.R.D. at 6 ("The Rule also prevents experts from 'lying in wait' to express new opinions at the last minute, thereby denying the opposing party the opportunity to depose the expert on the new information or closely examine the expert's new testimony.").

Furthermore, even if the Court were to treat Morse's Affidavit as a "supplementation" of his original report, such supplementation would not be permissible here because Plaintiff failed to "supplement" by the Rule 26(e)(2) deadline given that the both the discovery cut-off and the extended deadline set by the Court for the disclosure of Plaintiff's expert report had passed. See Fed. R. Civ. P. 26(e)(2) ("Any additions or changes to [information included in the report] must be disclosed by the time the parties' pretrial disclosures are due.").

As explained by the court in Allgood v. General Motors Corp., 2007 WL 647496 (S.D. Ind. Feb. 2, 2007), the presentation of a new or transformed opinion by "supplementation" must be examined closely:

Although Fed. R. Civ. P. 26(e) requires a party to "supplement or correct" disclosure upon information later acquired, that provision does not give license to sandbag one's opponent with claims and issues which should have been included in the expert witness' report. . . .

To rule otherwise 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 surely 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. That process would hinder rather than facilitate settlement and the final disposition of the case.

Id. at *3-4 (quoting Beller v. United States, 221 F.R.D. 689, 695 (D.N.M.2003)). This Court agrees.

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