Fort Collins Nissan, Inc. v. Kia Motors America, Inc.

Filing 73

ORDER ON MOTION TO STRIKE by Magistrate Judge Nina Y. Wang on 12/14/2018. IT IS ORDERED that Defendant's 60 Motion to Strike is DENIED; and a Telephonic Status Conference is set for 12/19/2018 10:00 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. Counsel shall call chambers at 303.335.2600 together, on one telephone at the designated time to participate. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00795-WYD-NYW
FORT COLLINS NISSAN, INC.
D/B/A TYNAN’S KIA, a Colorado Corporation,
Plaintiff,
v.
KIA MOTORS AMERICA, INC.,
a California Corporation,
Defendant.
ORDER ON MOTION TO STRIKE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Kia Motors America, Inc.’s (“Defendant”
or “KMA”) Motion to Strike Second Amended Expert Report of Kenneth R. Rosenfield (“Motion
to Strike” or “Motion”), filed October 25, 2018. [#60].1 The undersigned considers the Motion
pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 30, 2017 [#4], and the
Memorandum dated October 26, 2018 [#61]. Upon careful review of the Motion and associated
briefing, the comments offered at the October 4, 2018 Discovery Hearing, the applicable case law,
and the entire docket, this court DENIES the Motion to Strike for the reasons stated herein.
BACKGROUND
This court has discussed the background of this matter in its prior Order, see [#43], and
does so here only as it pertains to the instant Motion. Plaintiff Fort Collins Nissan, Inc. d/b/a

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Defendant filed its Motion to Strike [#59] under Level 1 Restriction. The docket also includes a
public entry [#60] and redacted version of the Motion [#66]. For consistency, I cite to the restricted
filing [#59], but do so without disclosing any information subject to restriction.

Tynan’s Kia (“Plaintiff” or “Tynan’s”), a franchised motor vehicle dealer, operates a franchised
motor vehicle dealership that sells and services KMA products. [#1 at ¶¶ 1-2, 7]. Based on United
States Census Tract data each dealer is assigned a specific territory—known as the Area of Primary
Responsibility (“APR”)—that is used “for measuring sales performance and assigning sales
incentive objectives,” among other things. See [id. at ¶¶ 11-12, 14]. Tynan’s alleges that KMA
granted another dealership permission to relocate seven miles closer to Plaintiff’s dealership in
2012, but did not adjust Plaintiff’s APR until 2015, which led to Tynan’s not receiving “significant
monies under the Incentive Programs as a result of its failure to meet unfairly inflated sales
objectives.” See [id. at ¶¶ 20-28]. KMA also allegedly refused Plaintiff’s proposal to establish a
dealership in Aurora, Colorado and denied Plaintiff’s request to relocate. See [id. at ¶¶ 29-34, 4346]. Tynan’s alleges that KMA’s refusals, based on faulty APR metrics, resulted in significant
lost profits. See [id. at ¶¶ 34, 45].
Plaintiff initiated this suit on March 29, 2017. [#1]. This court held a Scheduling
Conference with the Parties on June 20, 2017. See [#24]. Relevant here, the Scheduling Order
originally set the affirmative experts deadline as January 19, 2018, the rebuttal experts deadline as
February 16, 2018, and the discovery deadline as April 2, 2018. See [#25 at 7]. Following several
requests for extensions of time, the undersigned extended the affirmative experts deadline to May
31, 2018, the rebuttal experts deadline to July 2, 2018, and the discovery deadline to August 30,
2018. See [#46].
On May 31, 2018, Tynan’s filed on the court’s docket its designation of affirmative experts;
these included Edward Stockton and Kenneth Rosenfield (“Mr. Rosenfield”).2 See [#48 at 1].
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This court struck the designation of experts pursuant to Rule 26(a)(2) of the Federal Rules of
Civil Procedure that provides that expert reports will be exchanged between the parties and the
Local Rules of the District of Colorado, which provide that written discovery materials will not be
filed with the court unless subject to a motion.
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Then, on September 27, 2018, Plaintiff filed its Motion for Leave to Supplement Expert Report of
Kenneth Rosenfield and Supporting Memorandum (the “Motion to Supplement”). [#52]. Because
discovery had closed, Plaintiff moved to reopen discovery for the sole purpose of providing
Defendant with Mr. Rosenfield’s Second Amended Expert Report (the “Second Amended
Report”) see [#59 at 4-6; #64 at 2], explaining that Plaintiff learned at Mr. Rosenfield’s deposition
that Mr. Rosenfield had used the “wrong set of data” in compiling his affirmative expert report.
See [#52 at 1-5]. This court struck the Motion to Supplement and set the Parties for an informal
discovery dispute conference. See [#54]. At the October 4, 2018 informal discovery dispute
conference, this court directed Plaintiff to serve KMA with the Second Amended Report and
permitted KMA to file a Motion to Strike if, after a robust meet and confer, Defendant believed
the Second Amended Report was not proper under Rule 26(e) of the Federal Rules of Civil
Procedure. See [#56]. The instant Motion followed.
Now, KMA argues that the Second Amended Report is not proper under Rule 26(e)
because it is a “new, substitute report, based on different data.” [#59 at 11]. KMA further contends
that even if the Second Amended Report is a supplement, it is untimely under Rule 26 and Tynan’s
untimeliness was not substantially justified or harmless under Rule 37(c). See [id. at 13-16].
Plaintiff counters that the Second Amended Report is a proper supplement that Plaintiff timely
served and, if not, Tynan’s untimeliness was substantially justified and harmless. See [#64 at 39]. The Motion is now ripe for disposition.
LEGAL STANDARDS
I.

Rule 26
Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that “a party must disclose

to the other parties the identity of any witness it may use at trial,” generally accompanied by a

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written report “if the witness is one retained or specially employed to provide expert testimony in
the case.” Fed. R. Civ. P. 26(a)(2)(A)-(B). Like initial disclosures, “[t]he parties must supplement
these disclosures when required under Rule 26(e),” Fed. R. Civ. P. 26(a)(2)(E), if the party
discovers that the disclosure is “incomplete or incorrect” in some “material respect,” see CaldwellBaker Co. v. S. Illinois Railcar Co., No. CIV.A.00-2380-CM, 2001 WL 789389, at *1 (D. Kan.
June 5, 2001). If incomplete or incorrect, the disclosing-party must supplement its disclosures in
a timely manner. See Cohen v. Pub. Serv. Co. of Colorado, No. 13-cv-00578-WYD-NYW, 2015
WL 6446948, at *2 (D. Colo. Oct. 26, 2015) (discussing Fed. R. Civ. P. 26(e)(1)).
The timeliness of supplementation centers on when the disclosing-party “reasonably
should know” that its disclosures are incomplete or incorrect. See Jama v. City & Cty. of Denver,
304 F.R.D. 289, 299-300 (D. Colo. 2014). But such supplementation must be made no later than
the time a party’s pretrial disclosures are due under Rule 26(a)(3). Fed. R. Civ. P. 26(e)(1)(a),
(e)(2). Under this District’s Local Rules of Civil Practice, disclosures under Rule 26(a)(3) of the
Federal Rules of Civil Procedure must be made by the deadline for the submission of the Final
Pretrial Order. D.C.COLO.LCivR 26.1(b); Auraria Student Housing at the Regency, LLC v.
Campus Vill. Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2015 WL 72360, *3 (D. Colo. Jan.
5, 2015); Buben v. City of Lone Tree, No. 08-cv-00127, 2010 WL 4810632, *2 (D. Colo. Nov. 19,
2010). Nevertheless, even if made on or before the deadline, the court will also consider a party’s
diligence in obtaining the supplemental information, the length of time to supplement once the
party obtained the supplemental information, and other relevant facts to determine whether a
party’s course of conduct in supplementing frustrates the purpose of Rule 26 to promote full and
orderly pretrial disclosure. See e.g., Jama, 304 F.R.D. at 299-300 (discussing timeliness under

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Rule 26(e)); Harvey v. United States, Civil Action No. 04-cv-00188-WYD-CBS, 2005 WL
3164236, *13 (D. Colo. Nov. 28, 2005).
II.

Rule 37(c)(1)
If the court finds a violation of Rule 26(e), it must consider the imposition of an appropriate

sanction. Unless substantially justified or harmless, Rule 37(c)(1) precludes a party from using
information to supply evidence on a motion or at trial if that party fails to disclose the information
as required by Rule 26(e). Fed. R. Civ. P. 37(c)(1). The court has broad discretion in determining
whether the Rule 26 violation was substantially justified or harmless, and the court need not make
explicit findings in this regard. See Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170
F.3d 985, 993 (10th Cir. 1999). Nonetheless, several factors guide the court’s determination,
including (1) the prejudice and surprise to the party against whom the testimony is offered; (2) the
ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would
disrupt the trial; and (4) the moving party’s bad faith or willfulness. See Jacobsen v. Deseret Book
Co., 287 F.3d 936, 953 (10th Cir. 2002). If neither substantially justified nor harmless, the court
must choose a sanction that is both just and related to the violation. See Jama, 304 F.R.D. at 300.
ANALYSIS
The essential issue for this court to determine on the instant Motion is whether Mr.
Rosenfield’s Second Amended Report constitutes a supplement contemplated by Rule 26(e). For
the following reasons, I conclude that it does. I further conclude that Plaintiff’s production of the
Second Amended Report was timely.
KMA argues that the Second Amended Report is a new expert report prepared by Mr.
Rosenfield because Mr. Rosenfield changed all but two numbers from his previous reports to arrive
at a new damages calculation for Tynan’s lost profits. See [#59 at 6-7, 11-13; #69 at 5-8]. KMA

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stresses that Mr. Rosenfield’s new calculations do not simply correct prior inaccuracies, but rather
bolster his prior damages opinions based on different information that was available to him from
the outset. See [#59 at 6-7, 11-13; #69 at 5-8].3 KMA continues that even if the Second Amended
Report is a supplement it is untimely because Tynan’s was not diligent in supplementing Mr.
Rosenfield’s First Amended Report. See [#59 at 13; #69 at 2-5, 8].
It is undisputed that Mr. Rosenfield’s previous two expert reports relied on inaccurate
information when calculating Plaintiff’s damages. The previous two reports utilized data that
KMA complied as “a composite (or average) of [financial information for] 15 Kia dealers in
Tynan’s district.” See [#59 at 6; #59-2; #59-3]. These composite financial statements are distinct
from Tynan’s financial statements and do not portray Plaintiff’s dealership-specific financial
information. During Mr. Rosenfield’s deposition on August 30, 2018, KMA’s counsel identified
that the use of the composite financial statements did not truly account for Tynan’s damages
because only Tynan’s financial statements provided the appropriate data. See [#59-5 at 163:9166:24].4 The Second Amended Report, which is largely identical to the two previous versions,
utilizes data from Tynan’s financial statements, rather than the composite financial statements, and
adjusts the damages calculations accordingly. Compare [#59-2; #59-3] with [#59-6].
Tynan’s argues, and this court agrees, that the Second Amended Report corrects an error
with the underlying data used in the two previous expert reports. See [#64 at 4-5]. Indeed, there
is no dispute that the Second Amended Report’s material difference is its use of Tynan’s financial

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KMA also lodges several arguments challenging the methodology Mr. Rosenfield used to render
his opinions, see, e.g., [#59 at 12-13], but this court does not consider such arguments on the instant
Motion to Strike as they are more appropriate for a motion filed under Rule 702 of the Federal
Rules of Evidence. Further, nothing in this Order shall be construed as limiting Defendant’s ability
to file a Daubert motion at a later date.
In citing to a transcript, this court cites the document number generated by the court’s CM/ECF
system but the page and line number generated by the transcript.
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statements in lieu of the composite financial statements provided by KMA. Nor is there any
dispute that Tynan’s financial statements provide the only useful data of Plaintiff’s lost profit
damages—a point belabored by KMA’s attorney at Mr. Rosenfield’s deposition, e.g., [#59-5 at
163:9-166:24], and throughout its briefing on the Motion to Strike [#59; #69] and its Motion for
Summary Judgment [#51; #58]. Thus, I conclude that the Second Amended Report properly
corrects an inaccuracy in some material respect as contemplated under Rule 26(e).
This court reached a similar conclusion in a factually analogous scenario. In Lenox
Maclaren Surgical Corporation v. Medtronic, Incorporated (“Lenox”), this court considered the
appropriateness of a supplemental expert report regarding damages propounded by the plaintiff.
No. 10-CV-02139-MSK-NYW, 2015 WL 6735495, at *1 (D. Colo. Nov. 4, 2015). The damages
expert’s supplemental report recalculated the defendant’s market share based on the financial
documents of a third-party, documents allegedly produced to the plaintiff prior to its damages
expert’s initial report but which the plaintiff did not provide to the damages expert. See id. at *2.
The defendant moved to strike the damages expert’s supplemental report, raising similar
arguments as KMA does here. See id. at *2-3. This court concluded that the damages expert’s
supplemental report “constitute[d] [a] supplementation based on corrected information rather than
an improper attempt to use Rule 26(e) to include additional opinions or strengthen or bolster
existing expert opinions.” Id. at *3. A similar conclusion is appropriate here despite KMA’s
insistence that this court preclude Tynan’s from relying on the Second Amended Report because
Tynan’s had its own financial statements well before Mr. Rosenfield issued his initial report.
Further, this court finds misplaced KMA’s reliance on Beller ex rel. Beller v. United States,
221 F.R.D. 696 (D.N.M. 2003). There, though somewhat factually similar, the court rightfully
found that the supplemental report of the plaintiffs’ damages expert was not a supplement but an

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entirely new report on the plaintiffs’ claimed damages. Id. at 697. In comparing the initial and
supplemental reports, the court highlighted several areas where the supplemental report offered
new damages totals without any explanation, even though the damages expert used the same
figures and factors in both reports. See id. at 697-700. Moreover, the supplemental report included
new categories of claimed damages and recalculated some categories based on another expert’s
calculations. Id. Here, as in Lenox, the Second Amended Report does not contain any new
methodology and rather corrects Mr. Rosenfield’s analysis based on accurate data—data known
to all and which Defendant stressed at Mr. Rosenfield’s deposition is the only reliable data to
calculate Plaintiff’s lost profits. Nor is this a scenario where Plaintiff sought to supplement Mr.
Rosenfield’s First Amended Report based on opinions expressed in rebuttal to Mr. Rosenfield’s
opinions.
In addition, although Plaintiff produced the Second Amended Report after the expiration
of the affirmative experts deadline (May 31, 2018) and discovery cut-off (August 30, 2018), its
production was timely under the plain language of Rule 26(e)(2) of the Federal Rules of Civil
Procedure and D.C.COLO.LCivR 26.1(b) as the presiding judge, the Honorable Wiley Y. Daniel,
has yet to set this matter for a Final Pretrial Conference or for trial. KMA contends that Tynan’s
had the requisite information all along and was not diligent in supplying it to Mr. Rosenfield or
when producing the Second Amended Report several weeks after learning of Mr. Rosenfield’s
error. While it is true that Plaintiff retained the requisite information from the outset and that
Plaintiff should have been more careful in reviewing Mr. Rosenfield’s expert reports, these facts
alone do not persuade this court that Tynan’s was not diligent in supplementing Mr. Rosenfield’s
First Amended Report once KMA’s counsel identified Mr. Rosenfield’s error on August 30, 2018.
This court believes that allowing Plaintiff to proceed with the Second Amended Report will not

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derail the progress of this case in any significant manner, and that this is a more equitable solution
as compared to precluding Plaintiff from providing any opinion as to its claimed damages.
Finally, though mindful of the time and resources expended by the Parties to date, this court
believes that the Parties can efficiently proceed with limited discovery concerning the Second
Amended Report. Cf. Bylin v. Billings, 568 F.3d 1224, 1230 (10th Cir. 2009) (holding that
“expenditure of time, money, and effort alone is not grounds for a finding of prejudice” when
considering leave to amend). And given that the Second Amended Report does not rely on
information or methodologies previously undisclosed or unknown to the Parties, this court
anticipates that any additional discovery, including any supplemental or rebuttal expert report, will
not create an insurmountable hardship on KMA. Indeed, Plaintiff initially offered to Defendant a
second, half-day deposition of Mr. Rosenfield to account for the Second Amended Report. See
[#52 at 6-7].

In acknowledgment that Plaintiff’s inadvertent mistake warrants additional

discovery, the court will require Plaintiff to make Mr. Rosenfield available, at Plaintiff’s expense,
at a location of Defendant’s choosing for a four-hour deposition, no later than January 31, 2019.
Furthermore, this court directs the Parties to engage in a robust meet and confer to discuss the
scope of any additional discovery needed, which the Parties will then address with this court at a
Telephonic Status Conference.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1)

Defendant’s Motion to Strike [#60] is DENIED; and

(2)

A Telephonic Status Conference is SET for December 19, 2018 at 10:00 a.m.

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DATED: December 14, 2018

BY THE COURT:

_________________________
Nina Y. Wang
United States Magistrate Judge

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