Experts — Untimely Supplemental Report Harmless Where Expert Deposed on Subject Matter Before It Issued & Opponent Didn’t Request Another Dep — Judicial Notice of Internet Evidence — No Error in Refusing to Notice Google Maps Printout

Jackson v. Allstate Ins. Co., 2015 U.S. App. LEXIS 7529 (8th Cir. May 7, 2015):

After a fire of incendiary origin destroyed her house, Patricia Jackson sued Allstate Insurance Company for denying her claim on a homeowner's insurance policy. Allstate asserted that Jackson's coverage was void because she burned the house or caused it to be burned and because she made material misrepresentations regarding how the fire was started. The district court1granted Allstate's motion for partial summary judgment and denied Jackson's motion for summary judgment. The parties then proceeded to trial on Jackson's breach of contract claim, and the jury found in favor of Allstate. On appeal, Jackson asserts that the jury's verdict was not supported by sufficient evidence. Jackson also appeals the district court's dismissal of her remaining claims, its imposition of a one-day time limit for Jackson to present her case, numerous evidentiary and discovery rulings, and the court's denial of Jackson's request for a statutory penalty and attorney's fees related to Allstate's untimely attempt to pay her mortgage. We affirm.


Jackson next asserts the district court erred by denying her motion to exclude Levy's expert testimony because of a late disclosed supplemental expert report. "We review the district court's evidentiary rulings under an abuse of discretion standard." Townsend v. Bayer Corp., 774 F.3d 446, 460 (8th Cir. 2014). The record indicates that on December 2, 2013, Jackson took an extensive deposition of Levy in Little Rock, Arkansas. On the morning of the deposition, Levy conducted a field study of the cell towers located near Jackson's house. [*22]  During the deposition, Levy disclosed to Jackson's counsel that he had conducted the field study, discussed the methodologies he utilized, and fully explained the results of the study. Approximately two weeks later, Levy provided Jackson with a supplemental expert report that summarized the same information Levy disclosed during his deposition.

Rule 37(c)(1) of the Federal Rules of Civil Procedure 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 . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Allstate concedes that its disclosure of the report was untimely, but contends that its late disclosure was substantially justified and was harmless. We agree. The record indicates Jackson fully deposed Levy with respect to the field study and never requested the opportunity to take a supplemental deposition. See Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (noting trial court has wide discretion in fashioning remedies or sanctions for violations of Rule 26(a) or (e)); Fed. R. Civ. P. 37(c)(1) (stating sanctions court may impose in addition to or instead of excluding the evidence). Jackson also fails to identify any information in the report that took her by surprise [*23]  or that she needed to discuss with Levy in more detail.  We thus cannot say that the district court abused its discretion by denying Jackson's motion to exclude Levy's expert testimony.

Jackson next contends the district court erred by refusing to take judicial notice of the Google Maps printout. It is undisputed that the printout was hearsay evidence, and Jackson has failed to establish that drive time estimates from Google Maps are so accurate that they cannot reasonably be questioned. Fed. R. Evid. 201(b) (identifying the kinds of facts that may be judicially noticed), 801 & 802. Accordingly, the district court did not abuse its discretion by excluding the Google Maps printout.

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