Dorn v. Vivint, Inc.
Filing
110
OPINION AND ORDER: it is ORDERED that: 1) The plaintiffs' 93 motion for leave to supplement is granted; 2) The plaintiffs shall, by 2/19/2021, file Lindsay Gill's supplemental expert report (doc. no. 93 - 1) as a supplement to their r eply brief in support of their 52 motion for class certification; The clerk's office shall link the supplement to the exhibits previously filed under seal (doc. no. 96 - 1); 3) Defendant Vivint, Inc.'s 81 motion to exclude the expert r eport and testimony of Lindsay Gill is denied without prejudice; Defendant Vivint, Inc. may file a motion to exclude Gill's supplemented report and testimony by 5:00 p.m. on 3/12/2021; 4) Defendant Vivint, Inc. may file a surreply in opposition to the plaintiffs' motion for class certification by 5:00 p.m. on 3/19/2021. Signed by Honorable Judge Myron H. Thompson on 2/16/2021. (amf, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
TIFFANY DORN, et al.,
individually and on behalf
of all others similarly
situated,
Plaintiffs,
v.
VIVINT, INC.,
Defendant.
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CIVIL ACTION NO.
2:19cv258-MHT
(WO)
OPINION AND ORDER
Now pending before the court are the plaintiffs’
motion for leave to supplement the reply brief to their
motion for class certification with the supplemental
expert
Inc.’s
report
motion
of
to
Lindsay
Gill
exclude
testimony of Lindsay Gill.
and
the
defendant
expert
Vivint,
report
and
For the reasons below, the
court will grant the plaintiffs’ motion for leave to
supplement and deny without prejudice Vivint’s motion
to exclude.
I.
The
plaintiffs
BACKGROUND
disclosed
the
expert
report
of
Certified Fraud Examiner Gill in compliance with the
deadlines in the uniform scheduling order.
Vivint was
provided with a copy of this report and deposed Gill.
Gill
noted
in
her
report
and
stated
during
her
deposition that her analysis was based on the limited
information
the
company
had
disclosed
and
that
required additional data to complete her work.
she
The
plaintiffs requested this information from Vivint as
part of their third set of discovery requests.
company
objected
to
the
request,
and
the
The
plaintiffs
subsequently filed a motion to compel responses.
The
parties eventually reached an agreement under which the
company agreed to produce the requested data, but only
for a subset of its accounts.
The company provided
these data to Gill and, the following day, filed a
motion to exclude her expert report and testimony.
2
Several weeks later, the plaintiffs submitted to
Vivint
an
updated
version
of
Gill’s
expert
report,
which had been revised based on the additional customer
data.
The company deposed Gill again regarding the
contents of the supplemental report.
also
filed
the
motion
to
The plaintiffs
supplement
now
before
the
court, seeking to include Gill’s supplemental report in
support of their motion for class certification.
The
company opposes this motion.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 26 dictates that
the parties must disclose their testifying experts and
sets the deadlines and requirements for doing so.
party’s
expert
report
must
include
“a
A
complete
statement of all opinions the witness will express and
the
basis
and
26(a)(2)(B)(i).
reasons
for
them.”
Fed.
R.
Civ.
P.
Under Rule 26(e), parties have a duty
to supplement their expert reports “in a timely manner
3
if the party learns that in some material respect the
disclosure ... is incomplete or incorrect.”
Civ.
P.
26(e)(1)(A).
These
“additions
Fed. R.
or
changes”
“must be disclosed by the time the party's pretrial
disclosures under Rule 26(a)(3) are due.”
Fed. R. Civ.
P. 26(e)(2).
If a party violates Rule 26(a) or (e), Federal Rule
of Civil Procedure 37(c) allows the court to prevent
the party from using the expert evidence “unless the
failure was substantially justified or is harmless.”
See also OFS Fitel, LLC v. Epstein, Becker and Green,
P.C., 549 F.3d 1344, 1363 (11th Cir. 2008).
has
“broad
discretion”
to
exclude
The court
untimely
expert
analysis, even if the party has designated the analysis
as a “supplemental report.”
Guevara v. NCL (Bahama)
Ltd., 920 F.3d 710, 718 (11th Cir. 2019).
4
III.
Vivint
argues
accurately
be
DISCUSSION
that
Gill’s
considered
a
updated
report
supplement
cannot
because
it
contains new opinions based on new methodology.
company
says
considered
that
an
the
untimely
report
effort
should
to
shore
The
instead
up
be
Gill’s
analysis long after the deadline for expert disclosures
passed.
And
company,
asked
is
for
this
untimeliness,
self-inflicted:
the
relevant
according
to
the
plaintiffs
should
have
earlier,
before
Gill
data
produced her original report.
Rule
26(e)
does
not
give
a
party
license
to
supplement a previously filed expert report merely to
remedy
a
deficiency
or
address
criticisms.
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., No.
14cv24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2,
5
2016)
(Goodman,
M.J.).
Courts
must
carefully
distinguish between this sort of “true supplementation”
and mere “gamesmanship.”
Packaging,
LLC,
568
Gallagher v. Southern Source
F.
Supp.
2d
624,
631
(E.D.N.C.
2008) (Dever, J.).
It is clear this supplemental report is not the
result of gamesmanship.
Indeed, the major source of
delay in this case has been Vivint, not the plaintiffs.
The company drew out the discovery process for months,
leaving plaintiffs without access to the data relevant
to Gill’s second report until after the deadline for
expert
disclosures
additional
carte
had
information
blanche
fundamentally
to
passed.
certainly
overhaul
change
her
Receiving
this
did
not
give
completely
her
report
conclusions.
Gill
However,
or
the
supplemental report offered by the plaintiffs merely
builds on and refines the conclusions of the initial
report
Because
based
this
on
is
Gill’s
analysis
exactly
the
6
of
the
type
of
new
data.
additional
information that courts have found to be acceptable as
supplementation, see Guevara v. NCL (Bahamas) Ltd., 920
F.3d
710,
719
(11th
Cir.
2019)
(finding
that
the
district court did not abuse its discretion in allowing
portions of a supplemental report that “incorporated or
relied upon [the other party’s] late discovery”); Deere
& Co. v. FIMCO Inc., 260 F. Supp. 3d 830, 837 (W.D. Ky.
2017)
(Russell,
J.)
(holding
700
pages
containing
over
acceptable
because
it
did
that
of
not
new
change
a
supplement
evidence
the
was
earlier
opinions or theories), the plaintiffs were required to
produce it under Rule 26(e).
It
is
true
that,
as
Vivint
points
out,
the
plaintiffs failed to request the data Gill relies on in
her supplemental analysis before her initial report was
due.
neither
However, the court is convinced that this was
mismanagement
of
the
case
nor
a
deliberate
effort to spring new evidence on the company after the
deadline for expert reports had passed.
7
Instead, the
delay is the predictable result of Vivint’s failure to
respond to discovery requests in a timely and thorough
manner.
The
communications
plaintiffs
with
have
opposing
produced
counsel
in
numerous
which
they
objected to the company’s slow and deficient discovery
responses
in
the
months
before
Gill
produced
her
original report, revealing a pattern of foot-dragging
by the company that undermined the plaintiffs’ ability
to
identify
There
is
and
no
obtain
the
indication
information
that
the
they
needed.
plaintiffs
were
dilatory in trying to obtain the data used in Gill’s
supplemental report: they requested it far before the
close of discovery, and the company delayed responding
for
so
compel.
long
that
the
plaintiffs
filed
a
motion
to
Indeed, while the plaintiffs waited only five
days after submitting Gill’s initial report to request
the additional information she required, it took the
company
over
five
months
to
8
ultimately
produce
that
information.
Vivint
cannot
force
the
plaintiffs
to
shoulder the cost of its own intransigence.
Even if the court were to find that this motion to
supplement was actually an untimely attempt to bolster
Gill’s expert report, there is a lack of sufficient
prejudice to support its exclusion.
See Fed. R. Civ.
P. 37(c)(1); Thompson v. Merrill, No. 2:16cv783, 2020
WL 4756598, at *2 (M.D. Ala. Aug. 17, 2020) (Marks,
C.J.).
The determination of whether a party's expert
evidence
should
be
excluded
under
Rule
37(c)
within the “broad discretion” of the court.
lies
Abdulla v.
Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012)
(Hall, J.).
was
Here, there is no indication that Vivint
surprised
or
supplemental report.
unduly
prejudiced
by
Gill’s
In both her original report and
at her deposition, Gill made clear that she intended to
perform
a
more
thorough
additional
data
from
analysis
the
company.
once
she
And
received
since
the
conclusions expressed in the supplemental report are in
9
line
with
those
in
the
initial
report,
the
company
cannot claim to have been caught unawares by either the
existence of the report or the analysis it contained.
See Rockhill-Anderson v. Deere & Co., 994 F. Supp. 2d
1224, 1233 (M.D. Ala. 2014) (Watkins, C.J.) (finding
little prejudice where an expert’s “ultimate opinion
did not change” in the supplemental report and “his new
analysis was based on information that always has been
within” the possession of the objecting party).
Plaintiffs
depose
Gill
also
once
supplemental
The
deposition,
which
to
again,
report
deposition.
volunteered
and
to
company
the
court
the
is
they
not
company
allow
provided
weeks
persuaded
agreed
Vivint
to
the
before
that
and
to
the
this
which
provided the company with an opportunity to satisfy any
questions
burdensome.
it
had
about
Gill’s
work,
was
unduly
Nor does the court find that the need for
Vivint to seek leave from the court to file a motion
pursuant to Daubert v. Merrell Dow Pharms., Inc., 509
10
U.S.
579
(1993),
plaintiffs’
motion
or
a
surreply
for
class
in
opposition
certification
to
is
prejudicial, given the plaintiffs’ lack of opposition
to these motions and the fact that the court now grants
them.
Thus, would be no grounds to exclude Gill’s
supplemental expert report even if the court found that
it was untimely.
* * *
Accordingly, it is ORDERED that:
(1) The plaintiffs’ motion for leave to supplement
(doc. no. 93) is granted.
(2) The plaintiffs shall, by February 19, 2021,
file Lindsay Gill’s supplemental expert report (doc.
no.
93-1)
as
a
supplement
to
their
reply
brief
in
support of their motion for class certification (doc.
no. 52).
The clerk’s office shall link the supplement
to the exhibits previously filed under seal (doc. no.
96-1).
(3) Defendant Vivint, Inc.’s motion to exclude the
11
expert report and testimony of Lindsay Gill (doc. no.
81)
is
denied
without
prejudice.
Defendant
Vivint,
Inc. may file a motion to exclude Gill’s supplemented
report and testimony by 5:00 p.m. on March 12, 2021.
(4) Defendant Vivint, Inc. may file a surreply in
opposition
to
the
plaintiffs’
motion
for
class
certification by 5:00 p.m. on March 19, 2021.
DONE, this the 16th day of February, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
12
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