Liberty Mutual Fire Insurance Company v. Omega Flex, Inc.

Filing 33

ORDER denying 29 Motion to Preclude plaintiff from disclosing expert witness as set forth in the attached ruling. Signed by Judge Holly B. Fitzsimmons on 11/14/2013. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
LIBERTY MUTUAL FIRE INSURANCE :
COMPANY AS SUBROGEE OF PETER :
AND PAMELA METIVER
:
:
v.
:
:
OMEGA FLEX, INC.
:
:

CIV. NO. 3:13CV203 (WWE)

RULING ON DEFENDANT‟S MOTION TO PRECLUDE PLAINTIFF FROM
DISCLOSING EXPERT WITNESS [DOC. # 29]
Defendant Omega Flex, Inc. moves to preclude plaintiff,
Liberty Mutual Fire Insurance Company, as Subrogee of Peter and
Pamela Metiver, from disclosing an expert witness. [Doc. # 29].1
For the reasons that follow, defendant‟s motion to preclude
plaintiff from disclosing an expert witness is DENIED.
I.

Background
In this action, plaintiff asserts a products liability

claim pursuant to the Connecticut Products Liability Act. [Doc #
1].

Plaintiff alleges that its insured, Peter and Pamela

Metiver, own a residential real property located in Columbia,
Connecticut.

In 2011, the insured had installed a propane gas

delivery system equipped with corrugated stainless steel tubing
(“CSST”), which is manufactured and sold by defendant. [Doc. #
1, Compl., at ¶¶ 6-8].

Plaintiff alleges that on July 18, 2012,

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At the time defendant filed its motion to preclude, plaintiff had not
disclosed any expert witnesses. However, plaintiff has now disclosed four
(4) expert witnesses. Presumably, defendant seeks to preclude the opinions of
these four (4) experts as a sanction for the untimely disclosure.
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lightning struck at or near the residence as the result of a
thunderstorm. [Id. at ¶¶ 9-10]. Plaintiff alleges the energy
from the lightning strike, in attempting to travel to the
ground, migrated to the CSST which then perforated and released
natural gas.

[Id. at ¶ 10].

Plaintiff alleges that the heat

from this “melting event” ignited the natural gas, which created
a fire at the residence.

The fire caused significant damage to

the residence and its contents. [Id. at ¶¶ 9-10]. As a result of
the fire, plaintiff has allegedly reimbursed the insured for
claims in an amount over $500,000. [Id. at ¶ 10]. Plaintiff
alleges, inter alia, a defect in the CSST “consisting of a wall
thickness which is incapable of withstanding the foreseeable
energy dissipated by lightning.” [Doc. # 19, Rule 26(f) Report,
at Sec. III].
On May 16, 2013, the parties filed a Rule 26(f) report
[Doc. # 19], which Judge Eginton approved. [Doc. # 22]. The Rule
26(f) report provides that all discovery, including expert
depositions, will be completed by February 14, 2014. Under the
current scheduling order, plaintiff‟s expert designations and
reports were due by September 15, 2013, with its expert
depositions to be completed by December 15, 2013.

Defendant‟s

expert designations are due by November 15, 2013, with its
expert depositions due by February 15, 2014. On October 21,
2013, plaintiff provided defendant with the following expert

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disclosures and/or reports: disclosure of the cause and origin
investigator, Jason Mignano, C.F.I.; the report and disclosure
of plaintiff‟s metallurgist, Thomas W. Eagar, Sc.D., P.E.; the
report and disclosure of plaintiff‟s CSST expert, Mark Goodson,
P.E.; and the report and disclosure of plaintiff‟s mechanical
engineer, Kenneth R. McLauchlan, P.E., C.F.E.I.
II.

Discussion
Defendant seeks to preclude plaintiff from disclosing

expert witnesses. Defendant argues that plaintiff‟s late
disclosures are harmful and not justified.

Defendant also

argues that plaintiff‟s late disclosures prejudice defendant
because defendant does not have sufficient time to retain
rebuttal expert witnesses and to disclose its experts‟ reports.
Alternatively, defendant seeks the entry of a modified
scheduling order.
Plaintiff objects to the motion to preclude and argues that
defendant is not prejudiced by the late expert disclosures
because no meaningful discovery has occurred, and the parties
are within the timeframe to take additional discovery.
A. Standard
Under Rule 37(c), “If a party fails to provide information
or identify a witness as required by Rule 26(a)[…] the party is
not allowed to use that information or witness to supply
evidence on a motion at a hearing, or at trial, unless the

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failure was substantially justified or is harmless.”
Civ. P. 37(c).

Fed. R.

See also Innis Arden Golf Club v. Pitney Bowes,

Inc., No. 3:06CV1352 (JBA), 2009 WL 5873112, at *2 (D. Conn.
Feb. 23, 2009) (quoting Fed. R. Civ. P. 37(c)(1)) (“If a party
fails to provide information… as required by Rule 26(a) or (e),
the party is not allowed to use that information… to supply
evidence… at trial, unless the failure was substantially
justified or is harmless…”). “Rule 37(c)(1)‟s preclusionary
sanction is automatic absent a determination of either
substantial justification or harmlessness.” Id. (quoting Lore v.
City of Syracuse, No. 5:00-CV-1833, 2005 WL 3095506, at *3
(N.D.N.Y. Nov. 17, 2005)).
Courts in the Second Circuit are further directed to
consider the following factors in determining whether to exclude
expert testimony: “(1) the party‟s explanation for the failure
to comply with the discovery order; (2) the importance of the
testimony of the precluded witness; (3) the prejudice suffered
by the opposing party as a result of having to prepare to meet
the new testimony; and (4) the possibility of a continuance.”
Sofitel Inc. v. Dragon Med. & Scientific Comm., Inc., 118 F.3d
955, 961 (2d Cir. 1997) (citing Outley v. City of New York, 837
F.2d 587, 590-91 (2d Cir. 1988)).

“None of these factors are

dispositive and each factor is to be balanced against the others
in making the determination.”

Lab Crafters, Inc. v. Flow Safe,

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Inc., No. CV-03-4025 (SJF)(ETB), 2007 WL 7034303, at *6
(E.D.N.Y. Oct. 26, 2007) (citing Sofitel, 118 F.3d at 962).
B. Analysis
Plaintiff offers no explicit explanation for its failure to
comply with the scheduling order.

From plaintiff‟s objection,

however, it appears plaintiff delayed in disclosing its experts
because it did not have the benefit of defendant‟s discovery
responses.

Defendant contends that this proffered excuse is

nothing but “smoke and mirrors” because plaintiff did not serve
discovery on defendant until September 27, 2013, twelve (12)
days after the deadline for plaintiff to disclose its expert
witnesses.

Plaintiff‟s explanation is inadequate, given that

plaintiff could have sought an extension of time, from the Court
and/or the defendant, in which to make its expert disclosures.
Although plaintiff has failed to allege good cause for its
failure to comply with the scheduling order‟s deadline, there is
no evidence before the Court to suggest that plaintiff was
motivated by bad faith or other dilatory purpose.

Accordingly,

although the first Sofitel factor weighs in favor of preclusion,
it does not require it.

See also Lab Crafters, 2007 WL 7034303,

at *7 (“Exclusion of expert testimony should be reserved for
those rare cases where a party‟s conduct represents flagrant bad
faith and callous disregard for the Federal Rules of Civil
Procedure.”).

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With respect to the second Sofitel factor, the Court does
not have the benefit of plaintiffs‟ experts‟ reports to weigh
the importance of their anticipated testimony.

Nevertheless, in

product liability cases, such as the one here, experts are
usually central to establishing theories of defectiveness.

See,

e.g., Walters v. Howmedica Osteonics Corp., 676 F. Supp. 2d 44,
50 (D. Conn. 2009) (citing Lisella v. Ford Motor Co., No. 97-cv2001, 1999 U.S. Dist. Lexis 23321, at 7-8 (D. Conn. Oct. 26,
1999)) (“In products liability cases… „where the issue concerns
a product‟s design… it would seem that expert opinion is the
only available method to establish defectiveness, at least where
the design is not patently defective.‟”).

Accordingly, it is

likely that these experts will play an important role in
establishing plaintiff‟s theories of liability.

Therefore, this

factor also weighs in favor of denying defendant‟s motion to
preclude.
The third factor to consider is the prejudice suffered by
defendant “as a result of having to prepare and meet new
testimony.”

Sofitel, 118 F.3d at 962.

Defendant argues that

plaintiff‟s late disclosure is harmful because defendant does
not have sufficient time to retain rebuttal expert witnesses and
disclose its experts‟ reports.

Plaintiff contends that

defendant is not prejudiced because no meaningful discovery has
occurred, and that parties are “well within the time frame for

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discovery to take place.”

Plaintiff also states that to the

extent defendant‟s counsel requires additional time for its
expert disclosures, “such consent would obviously be
forthcoming.”

The Court agrees that defendant is not prejudiced

by the untimely disclosure given the procedural posture of the
case, and plaintiff‟s willingness to consent to an extension of
defendant‟s expert disclosure deadlines.

Moreover, any

prejudice suffered by an opposing party as a result of late
disclosure “can be alleviated by allowing them to depose the
expert prior to trial.”

Lab Crafters, 2007 WL 7034303, at *8.

Any prejudice defendant may suffer as a result of the late
disclosure may be further mitigated by requesting an extension
of the other expert discovery deadlines.
Finally, the Court considers the possibility of
continuance.

In this case, no trial date has been set.

The

parties‟ dispositive motions are not due until March 15, 2014.
In light of plaintiff‟s untimely disclosures, a brief extension
of the discovery deadlines, and thus the dispositive motion and
trial ready deadlines, is appropriate.

Although the Court is

cognizant that extended deadlines will adversely affect the
progression of the case, any delay appears de minimus given the
case‟s current procedural posture.

For example, defendant

proposes a modified scheduling order that would delay the filing

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of dispositive motions by only one month. [Doc. # 32-1].2
Accordingly, this factor also weighs in favor of denying
defendant‟s motion to preclude.
Based on the Court‟s balancing of the Sofitel factors, and
the general preference to determine issues on the merits,
defendant‟s motion to preclude is DENIED.

See Lab Crafters,

2007 WL 7034303, at *2 (“[C]ourts generally favor the
determination of issues on the merits.”); Scientific Components
Corp. v. Sirenza Microdevices, Inc., No. 03 CV 1851(NGG)(RML),
2008 WL 4911440, at *4 (E.D.N.Y. Nov. 13, 2008) (multiple
citations omitted)(“[P]recluding testimony of an expert, even
where there has not been strict compliance with Rule 26, may at
times tend to frustrate the Federal Rules‟ overarching objective
of doing substantial justice to litigants.”).
Defendant alternatively requests the entry of a proposed
modified scheduling order. [Doc. # 32].

The Court declines to

enter defendant‟s proposed amended scheduling order, absent
plaintiff‟s position on the proposed deadlines.

Although the

Court agrees that a brief extension of the current deadlines is
necessary, the parties shall instead confer and submit for the
Court‟s consideration a joint proposed modified scheduling
order.

2

The proposed amended scheduling order sets April 15, 2015 as the dispositive
motion deadline. Reviewing the other deadlines set forth in the proposed
order, the year 2015 appears to be error, and the correct date should reflect
April 15, 2014. See Doc. 32-1.
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The Court notes that nothing in this ruling should be
construed as an opinion on the admissibility of the expert
reports or testimony.
III. Conclusion
For the reasons set forth herein, the defendant‟s motion to
preclude [Doc. # 29] is DENIED. This is not a Recommended
Ruling. This is a discovery ruling or order which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the district judge upon motion
timely made.
ENTERED at Bridgeport, this 14th day of November 2013.

_______/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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