Thompson et al v. State of Alabama et al (JOINT ASSIGN)
Filing
253
MEMORANDUM OPINION AND ORDER: it is hereby ORDERED that the Objection (doc. 245 ) is OVERRULED. Signed by Chief Judge Emily C. Marks on 8/17/2020. (cwl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TREVA THOMPSON, et al.,
Plaintiffs,
v.
JOHN H. MERRILL, et al.,
Defendants.
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CIVIL CASE NO. 2:16-cv-783-ECM
(wo)
MEMORANUM OPINION AND ORDER
Now pending before the Court is the Defendants’ objection to the supplemental
expert report of Daniel A. Smith, Ph.D., filed on July 24, 2020. (Doc. 245).
I.
BACKGROUND and PROCEDURAL HISTORY
In April, 2020, in compliance with the deadlines of the Amended Uniform
Scheduling Order, (doc. 195), the Plaintiffs disclosed Daniel A. Smith, Ph.D. (“Smith”) as
an expert and provided his report. After that disclosure, the Plaintiffs moved for a
preliminary injunction, relying in part on Smith’s expert report. The Defendants criticized
Smith’s report in their opposition to the motion for preliminary injunction, arguing that his
calculations inflated the amount of court-ordered monies owed by felons. (Doc. 222 at 23,
n.15).
On June 22, 2020, the Defendants noticed Smith’s deposition for July 16, 2020.
(Doc. 245-1). On July 13, 2020, the Plaintiffs disclosed a supplemental report by Smith.
(Doc. 245-2). The supplemental report states that it is offered as a response to the
Defendants’ criticism of Smith’s initial report. (Doc. 245-3). On July 16, 2020, the
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Defendants deposed Smith and during that deposition questioned him about the
supplemental report. (Doc. 248-1).
The deadline for the Plaintiffs to provide expert rebuttal was July 16, 2020, and the
deadline to complete discovery in this case was July 20, 2020. (Doc. 195).
The Defendants filed the pending objection to Smith’s supplemental report on July
24, 2020. The Defendants have not moved to exclude the report. (Doc. 245 at 4, n.4). The
objection is filed pursuant to the Uniform Scheduling Order which provides that unless an
objection is filed within 14 days after disclosure of any expert witness, the disclosure shall
be deemed to be in full compliance with Rule 26. (Doc. 195 at 3). Although the Defendants
do not move to exclude Smith’s supplemental report at this stage of the proceedings,
because they have put the timeliness of the report at issue with their objection, the Court
will evaluate the timeliness objection as a ground for exclusion under Rule 37.
II.
STANDARD OF REVIEW
Parties must disclose their testifying experts “at the times and in the sequence that
the court orders.” FED.R.CIV.P. 26(a)(2)(D). An expert report must include “a complete
statement of all opinions the witness will express and the basis and reasons for them.”
FED.R.CIV.P. 26(a)(2)(B)(i). Rule 26(e) imposes a duty on an expert to supplement his
report “in a timely manner if the party learns that in some material respect the disclosure
... is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.”
FED.R.CIV.P. 26(e)(1)(A).
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If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of the
expert evidence “unless the failure was substantially justified or is harmless.” FED.R.CIV.P.
37(c)(1). A district court’s exclusion of expert reports is reviewed for abuse of discretion.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007).
III.
DISCUSSION
In objecting to Smith’s supplemental expert report, the Defendants acknowledge
that the Federal Rules of Civil Procedure impose a duty to supplement expert reports in
certain circumstances. It is the Defendants’ position, however, that the substance of
Smith’s supplemental report should have been initially disclosed, so the disclosure is
untimely. They contend that Smith’s supplemental expert report is not a proper rebuttal
report because, although they criticized Smith’s report in their brief, they “did not include
an expert on the subjects considered by Smith, thereby denying him an opportunity to
bolster his flawed analysis in a rebuttal report.” (Doc. 245 at 3). The Defendants point out
that “[c]ourts have broad discretion[] to exclude untimely expert testimony—even when
they are designated as ‘supplemental reports.’” Guevarav v. NCL (Bahama) Ltd., 920 F.3d
710, 718 (11th Cir. 2019).
The Plaintiffs argue in response that the Defendants ought not be allowed to criticize
an expert report in a brief and avoid addressing it in an expert report, thereby precluding
the Plaintiffs from timely rebutting those criticisms. In his supplemental report, Smith
explains that he did not disagree with the Defendants’ criticism of his original calculations,
but that the criticism is “inconsequential,” because even using the alternative methodology,
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the data still supports his original conclusion. (Doc. 245-3 at 4, 17). The Plaintiffs further
contend that there was no harm to the Defendants even if the expert report was untimely
disclosed because discovery had not yet closed at the time of its disclosure, and the
Defendants asked Smith about the supplemental report in his deposition.
The Court first notes that Smith’s supplemental report was disclosed on July 13,
2020, before the deadline for disclosing rebuttal reports, significantly distinguishing this
case from the Guevara decision relied on by the Defendants. See 920 F.3d at 718 (stating
that the “district court set deadlines for Guevara to produce initial and rebuttal reports from
his experts. But Guevara produced Dr. Zollo’s two supplemental reports after these
deadlines.”).
Cases which have examined the supplementation of expert reports have concluded
that supplementation is allowed where the disclosing party learns that its information is
incorrect or incomplete. See, e.g., Goodbys Creek, LLC v. Arch Ins. Co., 2009 WL
1139575, at *2 (M.D. Fla. 2009). “Rule 26(e) envisions supplementation when a party's
discovery disclosures happen to be defective in some way so that the disclosure was
incorrect or incomplete and, therefore, misleading.” Id. Supplementation is appropriate
“for the narrow purpose of correcting inaccuracies or adding information that was not
available at the time of the initial report.” Companhia Energetica Potiguar v. Caterpillar
Inc., 2016 WL 3102225, at *6 (S.D. Fla. 2016). Smith’s supplemental report, with its
recalculation based on the Defendants’ identification of inaccuracies in the original
calculation, fits within that reasoning and, therefore, is not improper supplementation.
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Even if the report was untimely disclosed, however, the Court finds a lack of
sufficient prejudice to support its exclusion. See Bosch v. Title Max, Inc., 2004 WL
5238128, at *4 (N.D. Ala. 2004)(stating, “[f]ailure to disclose is considered ‘harmless’
where there is no substantial prejudice to the party entitled to receive the disclosure.”); see
also Gunter v. Publix Super Markets, Inc., 2017 WL 2903179, at *3 (M.D. Ala.)(in
determining whether to allow an untimely expert report under Rule 37(c)(1), considering,
among other factors, the unfair prejudice or surprise of the opposing party), report and
recommendation adopted, 2017 WL 2957942 (M.D. Ala. 2017). The Defendants were
provided Smith’s report more than two days before Smith’s deposition and asked Smith
about that report. Cf. Guevara, 920 F.3d at 719 (finding harm where expert was disclosed
“on the eve” the deposition and expert left his deposition after only three hours without the
prior agreement of the parties). Therefore, even if the disclosure of Smith’s supplemental
expert report was untimely, the disclosure was harmless, and the report is not due to be
excluded. FED.R.CIV.P. 37(c)(1).
IV.
CONCLUSION
For the reasons discussed, it is hereby ORDERED that the Objection (doc. 245) is
OVERRULED.
DONE this 17th day of August, 2020.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
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