Bourke et al v. MAN Engines & Components, Inc

Filing 69

ORDER denying 54 defendant's motion to exclude plaintiffs' late disclosed experts; and granting 59 defendant's motion to compel. See attached order. Signed by Judge Donna F. Martinez on 2/23/16. (Brierley, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDERIC A. BOURKE, JR., ET AL.,
Plaintiffs,
v.
MAN ENGINES & COMPONENTS, INC.,
Defendant.

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CASE NO. 3:14cv843(DFM)

ORDER ON PENDING MOTIONS
Plaintiffs, Frederic A. Bourke, Jr. and Fireman’s Fund
Insurance Company (“FFIC”), bring this action against defendant,
MAN Engines & Components, Inc., alleging breach of express and
implied warranties arising from an engine failure on Bourke’s
motoryacht.

Pending before the court1 is defendant’s motion to

compel previously noticed depositions and discovery (doc. #59),
and its motion to exclude plaintiffs’ late disclosed experts.
(Doc. #54.)

I heard oral argument on February 18, 2016.

For

the following reasons, defendant’s motion to compel is GRANTED
and its motion to exclude experts is DENIED.
I.

Motion to Compel
Defendant’s motion to compel the depositions of Bourke and

his yacht captains, Patrick Kilbride and Adam Weaver, is
GRANTED.
1

See Fed.R.Civ.P. 30(a)(1) (“A party may, by oral

The parties consented to the jurisdiction of the
undersigned magistrate judge on January 29, 2015. (Doc. #39.)
See 28 U.S.C. § 636(c)(1).

questions, depose any person, including a party, without leave
of court . . . .”).

Counsel must confer and attempt to reach

mutually agreeable dates for these depositions.

If, despite

diligent effort, counsel are unable to agree upon dates, the
court will set them.
Defendant’s motion to compel the destructive testing of one
of the yacht’s intercoolers also is GRANTED.

By no later than

February 29, 2016, plaintiffs’ counsel may delineate the
additional specific information they seek concerning the testing
protocol to be performed on the intercooler.2

Defendant must

respond in good faith to describe with reasonable particularity
the manner of the testing.

See Fed.R.Civ.P. 34(b)(1)(B).

Defendant seeks an award of the reasonable attorney fees
and costs it incurred by bringing this motion.

Rule 37(a)(5)(A)

provides for the award of reasonable expenses, including
attorney fees, when a motion to compel is granted.3

See

Fed.R.Civ.P. 37(a)(5)(A)(“[T]he court must, after giving an
opportunity to be heard, require the party . . . whose conduct

2

Plaintiffs do not object to producing an intercooler for
destructive testing, but request additional information about
the specific tests to be performed.
3
There are three exceptions to Rule 37(a)(5)(A): “(i) the
movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii)
the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an
award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii).
None of these exceptions apply here.
2

necessitated the motion, the party or attorney advising that
conduct, or both, to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.”).
The court orders plaintiffs to pay defendant’s reasonable costs
and attorney fees with respect to the preparation of the motion
to compel.
II.

Motion to Exclude Experts

The court’s amended scheduling order (doc. #51) required
plaintiffs to disclose their expert witnesses by October 1,
2015.

Plaintiffs did not disclose their experts4 until November

4

Plaintiffs disclosed Edwin Davis (doc. #54-3) and Jon Bardo
(Doc. #54-4) as expert witnesses pursuant to Rule 26(a)(2)(B).
That rule requires that “if the witness is one retained or
specially employed to provide expert testimony in the case,” the
“disclosure must be accompanied by a written report—prepared and
signed by the witness.” Fed.R.Civ.P. 26(a)(2)(B). The written
report must contain: “(i) a complete statement of all opinions
the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them; (iii) any exhibits that will be used to summarize or
support them; (iv) the witness’s qualifications, including a
list of all publications authored in the previous 10 years; (v)
a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition;
and (vi) a statement of the compensation to be paid for the
study and testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B).
Davis and Bardo authored written reports, which plaintiffs
attached to their notices of disclosure. At oral argument,
defendant asserted that Davis and Bardo’s reports do not comply
with Rule 26(a)(2)(B).
Plaintiffs disclosed a third expert, Susan Harper (doc.
#54-2), pursuant to Rule 26(a)(2)(C), which does not require the
expert to provide a written report. Instead, the notice of
disclosure must include “the subject matter on which the witness
is expected to present evidence . . . and a summary of the facts
3

4, 2015.

Defendant seeks to preclude plaintiffs’ experts,

arguing that their late disclosure is unjustified and
prejudicial.
Rule 26 requires, in relevant part, that “a party must
disclose to the other parties the identity of any [expert]
witness it may use at trial to present evidence.”
26(a)(2).

Fed.R.Civ.P.

A party’s failure to disclose an expert witness as

required by Rule 26(a) means that “the party is not allowed to
use that . . . witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is harmless.”

Fed.R.Civ.P. 37(c).

“[T]here is a

general preference to determine issues on the merits . . ., and
exclusion of an expert is a harsh remedy that should only be
imposed in rare situations . . . .”

Lassen v. Hoyt Livery,

Inc., No. 3:13-CV-01529 (VAB), 2015 WL 2352491, at *2 (D. Conn.
May 15, 2015) (citations and internal quotation marks omitted).
In determining whether to exclude expert testimony, the
“severest of sanctions,” Lassen, 2015 WL 2352491, at *2, courts
in the Second Circuit consider four factors: “(1) the party’s
and opinions to which the witness is expected to testify.”
Fed.R.Civ.P. 26(a)(2)(C)(i)-(ii).
Defendant is critical of all three experts and posits that
their testimony does not constitute proper expert testimony
under the Federal Rules of Evidence and the principles set forth
in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). This issue is not
before me and nothing in this ruling should be construed as an
opinion on the admissibility of the expert reports or testimony.
4

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.”

Softel, Inc. v. Dragon Med. &

Scientific Comm., Inc., 118 F.3d 955, 961.

“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, Inc., No. CV–03–4025 (SJF)(ETB), 2007 WL
7034303, at *6 (E.D.N.Y. Oct. 26, 2007).
Here, the first factor weighs in favor of preclusion.
Plaintiffs have not offered a satisfactory explanation for their
failure to comply with the court’s scheduling order.

Plaintiffs

contend that in an effort “to promote the just, speedy, and
inexpensive determination of this action,” they withheld their
expert disclosures because they were engaged in settlement
discussions with defendant.5 (Doc. #56, p. 2.)

The expert

disclosures purportedly were ready to be served,6 but counsel

5

These discussions took place between counsel for defendant
and plaintiff FFIC only. Counsel for plaintiff Bourke did not
participate and offers no independent reason for the late
disclosure of experts.
6
The expert reports apparently had been prepared long before
plaintiffs disclosed them. Davis’s report indicates that the
“date of assignment” was October 1, 2012 and that he inspected
the yacht over four days in October 2012. (Doc. #54-3, p. 5.)
Similarly, Bardo’s report is dated January 24, 2013 and notes
5

first wanted to discuss settlement, which, if successful, would
have alleviated the need to disclose experts.

When defendant

rejected the settlement demand, plaintiffs served their expert
disclosures.

This explanation rings hollow.

First, counsel did

not even begin settlement discussions until after the due date
for expert disclosures.7

Second, plaintiffs could have, but did

not, seek an extension of time in which to disclose their
experts.8

Although this factor weighs in favor of preclusion,

the remaining factors weigh against it.
As to the second factor--the importance of the testimony
sought to be excluded--plaintiffs assert that the experts will
play a significant role in establishing the cause of the engine
failure and calculating damages, both of which are central
issues.

The importance of this testimony weighs against

preclusion.
The final two factors also weigh against preclusion.

The

third factor concerns the prejudice defendant would suffer as a
result of having to prepare and meet the new testimony, and the
fourth factor is the possibility of a continuance.

The only

prejudice defendant identifies is related to the timely
the “customer request” date was January 16, 2013. (Doc. #54-4,
p. 5.)
7
FFIC’s counsel began settlement discussions with defendant
on October 2, 2015. (Doc. #56-1.) Plaintiffs’ expert
disclosures were due by October 1, 2015. (Doc. #51.)
8
Nor did plaintiffs ask defendant for its consent to late
disclosure.
6

prosecution of the case, which can be cured by the court’s
continuance of the case management plan.

Although the discovery

deadline has passed, the case has not yet been set for trial.
See Exo-Pro, Inc. v. Seirus Innovative Accessories, Inc., No. CV
05-3629(LDW)(AKT), 2008 WL 4878513, at *4 (E.D.N.Y. Feb. 19,
2008) (finding that third and fourth Softel factors weigh
against preclusion where “there remains sufficient time before
trial to cure any prejudice that defendant might suffer as a
result of [plaintiff]’s late service of [its] expert report.”);
see also Lassen, 2015 WL 2352491, at *3 (“The Court is cognizant
that extended deadlines will adversely affect the progression of
the case, but the Court expects that, with proper planning,
communication, and cooperation among the parties, any delays
would not be significant.”).
Based on the court’s balancing of the Softel factors,
defendant’s motion to exclude plaintiffs’ experts is DENIED.
The case management order is amended as follows: any updating
and finalizing9 of plaintiffs’ expert reports must be done by
March 7, 2016;

plaintiffs’ experts must be deposed by April 4,

2016; defendant’s rebuttal experts must be disclosed by April
20, 2016; and deposed by May 18, 2016.

No dispositive motion

will be filed unless a prefiling conference is requested; to be
timely, any request for a prefiling conference must be submitted
9

See footnote 4.
7

on or before April 20, 2016.

A joint status report must be

filed by May 19, 2016, and every 30 days thereafter until the
case is resolved.

All discovery must be completed by May 18,

2016.

The parties’ joint trial memorandum is due by June 29,

2016.

The case will be considered trial ready as of August

2016.
III. Conclusion
For the foregoing reasons, defendant’s motion to compel
(doc. #59) is GRANTED and its motion to exclude experts (doc.
#54) is DENIED.

The court awards defendant reasonable costs and

attorney fees with respect to the preparation of the motion to
compel.

Counsel are ordered to meet and confer in a good faith

effort to reach an agreement regarding the fees.

If the parties

are unable to agree, defendant may submit an affidavit itemizing
the reasonable expenses it incurred in filing the motion.
Plaintiffs may file an objection within 14 days thereafter as to
the amount of the requested award.
SO ORDERED at Hartford, Connecticut this 23rd day of
February, 2016.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

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