Rivercliff Company Inc v. Residences At Riverdale GP LLC et al
ORDER denying defts' 93 Motion to Strike the expert report and exclude the testimony of Dr. Norman D. Dennis; granting pltf's 97 Motion for Leave to provide belated expert witness disclosure. Signed by Judge Susan Webber Wright on 2/6/12. (vjt)
THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RIVERCLIFF COMPANY, INC.
RESIDENCES AT RIVERDALE GP,
LLC, ET AL.
NO: 4:10CV00330 SWW
Plaintiff Rivercliff Company, Inc. (“Rivercliff”) brings this diversity action against
Residences at Riverdale GP, LLC; Residences at Riverdale LP; David F. Stapleton; and Nations
Construction, seeking damages and injunctive relief for trespass to land, breach of the duty of an
adjoining landowner to provide lateral support, and negligence.
Before the Court are (1)
Defendants’ motion to exclude testimony by Plaintiff’s proposed expert, Dr. Norman D. Dennis
(docket entries #93, #94), Rivercliff’s response in opposition (docket entry #96), and
Defendants’ reply (docket entry #100) and (2) Rivercliff’s motion for leave to provide belated
expert witness disclosures (docket entry #97) and Defendants’ response in opposition (docket
entry #101). After careful consideration, and for reasons that follow, Defendants’ motion is
denied, and Rivercliff’s motion is granted.
Rivercliff owns real property in Little Rock, which contains the Rivercliff Apartments.
Rivercliff claims that Defendants excavated the base of a hillside, which removed lateral support
for its property and damaged Magnolia Avenue, the only means of ingress and egress to the
By order entered November 17, 2011, the Court granted Rivercliff’s motion to continue
the trial date, originally set for December 5, 2012. On November 4, 2011, Rivercliff disclosed
Dr. Norman D. Dennis as a potential expert witness, and on November 7, 2011, Rivercliff
delivered Dr. Dennis’s expert report to Defendants. Rivercliff acknowledges that failed to
timely identify Dr. Dennis as a witness and to provide expert disclosures within the time required
under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Defendants move to strike Dr.
Dennis’s expert report and exclude his testimony based on Rivercliff’s untimely disclosure.
In deciding whether to exclude a witness on the basis of untimely identification, the
Court should consider (1) the reason for failing to disclose the witness earlier, (2) the importance
of the witness's testimony, (3) the opposing party’s need for time to prepare, and (4) whether a
continuance would be useful. See Life Plus Intern. v. Brown, 317 F.3d 799, 803-04 (8th Cir.
2003). Considering these factors, the Court finds that Defendants’ motion should be denied.
First, Rivercliff states that because of the evolving condition of the hillside at issue, Dr.
Dennis’s findings were not available at the time expert disclosures were due in this case.
Second, Rivercliff asserts that the instability of the hillside in question is an ongoing, developing
condition, and the results of new geological tests conducted by Dr. Dennis provide additional
information that will be helpful to the determination of contested issues. Third, Rivercliff states
that it will make Dr. Dennis available for deposition, and the Court finds that Defendants have
ample time to prepare for trial, without a continuance of the September 17, 2012 trial date.
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to provide belated
expert witness disclosure (docket entry #97) is GRANTED, and Defendants’ motion to strike the
expert report and exclude the testimony of Dr. Norman D. Dennis (docket entry #93) is
IT IS SO ORDERED THIS 6th DAY OF FEBRUARY, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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