Hunt v. Continental Casualty Company

Filing 133

ORDER by Judge Haywood S. Gilliam, Jr. granting 107 Motion for Leave to File Amended Rule 26 Expert Report. (hsglc1, COURT STAFF) (Filed on 7/24/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SUSAN HUNT,

Case No. 13-cv-05966-HSG

Plaintiff,
8

ORDER GRANTING LEAVE TO FILE
AMENDED RULE 26 EXPERT REPORT

v.
9
10

CONTINENTAL CASUALTY COMPANY,

Re: Dkt. No. 107

Defendant.

United States District Court
Northern District of California

11
12

I.

INTRODUCTION
Plaintiff Susan Hunt (“Plaintiff”) requests leave to amend the rebuttal expert report of Dr.

13
14

Phillip Allman (“Dr. Allman”). Having reviewed the parties’ arguments as set forth in the moving

15

papers, the Court hereby GRANTS Plaintiff’s motion for leave to file an amended Rule 26 expert

16

report.

17
18

II.

BACKGROUND
On April 17, 2015, Plaintiff served her rebuttal expert disclosures identifying Dr. Allman

19

as a rebuttal expert and including Dr. Allman’s Report of Plaintiff’s Economic Loss Mitigation

20

(the “Allman Report”). Declaration of Stacey L. Pratt (“Pratt Decl.”), Ex. A. The parties set Dr.

21

Allman’s deposition for May 8, 2015. Pratt Decl. ¶ 5. According to Plaintiff, on May 6, 2015

22

while preparing for his deposition, Dr. Allman became aware that he had used an incorrect

23

fraction in his calculations regarding the probability of Plaintiff finding employment in three

24

specific time periods. Declaration of Phillip Allman (“Allman Decl.”) ¶ 5. On that same day,

25

May 6, 2015, Dr. Allman amended his computations and provided Defendant’s counsel with his

26

revised calculations correcting the mistake in the Allman Report. Id., Pratt Decl. ¶ 6. On May 8,

27

2015 Dr. Allman was deposed in connection with this case and disclosed the error to opposing

28

counsel. Allman Decl. ¶ 6. At his deposition, Dr. Allman informed counsel that he believed

1

additional revisions were required and that he intended to revise his calculations. Id. On May 11,

2

2015, Dr. Allman revised his calculations in the manner discussed at his deposition. Allman Decl.

3

¶ 7; Declaration of Andrew Verriere (“Verriere Decl.”), Ex. 1, 96:9-98:20 (Allman Dep.). Also

4

on May 11, 2015, Dr. Allman prepared an amended Rule 26 report that corrected the percentages

5

based on the wrong data contained in paragraph 5 of the report to comport with the percentages set

6

forth in the amended computations. Id. The resulting calculations upwardly adjusted the

7

“probability of a successful job search for the average candidate employee” in Plaintiff’s position.

8

Compare Pratt Decl. Ex. A at p. 17 ¶¶ 5, 10 (4/17/15 Allman Report) with Allman Decl. Ex. B at p. 3

9

¶¶ 5, 10 (5/11/15 Amended Allman Report). That is, the new calculations were more favorable to
Defendant’s position than to Plaintiff’s. Aside from those corrected calculations, Dr. Allman’s report

11
United States District Court
Northern District of California

10

did not change. On May 12, 2015, Plaintiff served Dr. Allman’s amended report on Defendant.

12

Pratt Decl. ¶ 8. Defendant received notice of Dr. Allman’s amended calculations, and the

13

amended report, before the depositions of Defendant’s damages expert Dr. Mary Faust, and

14

Defendant’s expert on Plaintiff’s employability and mitigation, Dr. James Langenfeld. Pratt Decl.

15

¶¶ 9-10. Dr. Faust indicated in her deposition that Dr. Allman’s new calculations did not impact

16

her opinions in this case. Id. at ¶ 9.
The close of expert discovery was on May 14, 2015. Plaintiff provided the amended

17
18

Allman Report to Defendant before the discovery cut-off, but Defendant would not stipulate to

19

amendment, and as a result, Plaintiff filed the instant motion. Defendant opposes the motion.

20

III.

21

LEGAL ANALYSIS
Federal Rule of Civil Procedure 26(e) requires a party who has made a disclosure under

22

Rule 26(a) to supplement or correct expert disclosures “in a timely manner if the party learns that

23

in some material respect the disclosure or response is incomplete or incorrect . . . .” Fed. R. Civ.

24

P. 26(e)(1)(A). Rule 26(e)(2) extends the duty to supplement information from Rule 26(a) to the

25

expert’s report and information given in the expert’s deposition. Fed. R. Civ. P. 26(e)(2). “[R]ule

26

26(e) does not permit a party to introduce new opinions after the disclosure deadline under the

27

guise of a ‘supplement.’” France Telecom S.A. v. Marvell Semiconductor Inc., Case No. 12-CV-

28

04967-WHO, 2014 WL 1899616, at *3 (N.D. Cal. May 12, 2014).
2

1

Having reviewed the materials submitted by the parties, the Court finds that the amended

2

Allman Report comports with the requirements of Rule 26. As soon as Dr. Allman discovered the

3

errors in his calculations, he updated them and promptly notified opposing counsel. Allman Decl.

4

¶ 5; Pratt Decl. ¶ 6. The new calculations are not based on new opinions or theories, but instead

5

are corrections of mathematical errors in the original report. Plaintiff attempted to provide the

6

amended report to defense counsel before the expert discovery cut-off in this case, but

7

Defendant’s counsel refused. At Dr. Allman’s deposition, Defendant’s counsel had the

8

opportunity to question him on the new calculations and did so. See Allman Dep. at 96:9-98:20.

9

Both of Defendant’s experts were deposed after the calculation errors were discovered and the
amended calculations and report were provided to Defendant. At least one of Defendant’s experts

11
United States District Court
Northern District of California

10

noted that the amended calculations would not impact her opinion. Pratt Decl. ¶ 9. Finally,

12

Defendant has not pointed to any resulting prejudice that would occur as a result of allowing

13

Plaintiff to rely on the amended Allman Report.

14
15

For these reasons, Plaintiff’s Motion for Leave to Amend the Rule 26 Report of Dr. Phillip
Allman is GRANTED.

16
17
18
19
20

IT IS SO ORDERED.
Dated: July 24, 2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

21
22
23
24
25
26
27
28
3