Gazzara et al v. Pulte Home Corporation

Filing 158

ORDER denying 136 Motion to Strike Plaintiffs' supplemental expert report. Signed by Magistrate Judge Thomas B. Smith on 12/7/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHAUN PARKER GAZZARA, ANA
PAULA GAZZARA, HARRY JAMES
WHITMAN and MARCIA FAYE
WHITMAN,
Plaintiffs,
v.

Case No: 6:16-cv-657-Orl-31TBS

PULTE HOME CORPORATION,
Defendant.
ORDER
Pending before the Court is Defendant Pulte Home Corporation's Motion to Strike
and/or Exclude Plaintiffs' Supplemental Expert Report (Doc. 136) and Plaintiffs’ response
to the motion (Doc. 146). For the reasons that follow, the motion is due to be denied.
This is a putative class action brought by homeowners against Defendant Pulte
Home Corporation (“Pulte”), alleging the use of defective stucco siding on homes it
constructed (Doc. 1). The Court set a deadline of September 2, 2016, for class related
discovery (Doc. 49). Pulte scheduled the deposition of Plaintiff’s testifying expert, Thomas
E. Miller, P.E. of Structural Engineering and Inspections, Inc. (“Mr. Miller"), to occur on
August 22, 2016. On August 19, 2016, Pulte received Mr. Miller's expert report (the
"Original Report"), and the deposition was had, as scheduled. According to Pulte: “At that
time, it became clear that Mr. Miller had inspected less than 10 communities within the
putative class before making his report, despite having the names of, and opportunity to
inspect, all of the Pulte communities within the putative class prior to his deposition.”
(Doc. 136 at 2).

On August 31, 2016, a hearing on discovery issues was held (Doc. 95). Plaintiffs'
counsel discussed his need to have Mr. Miller review new stucco samples being taken
from communities in which Pulte built homes prior to taking the deposition of Pulte's
expert witness. Pulte's counsel explained that samples were not being taken but rather,
that Pulte's remediation contractor was removing stucco in conjunction with the
remediation of certain homes. Counsel agreed to a process whereby Mr. Miller could
receive and review portions of the stucco removed from the homes being remediated on
or before Friday, September 9, 2016 (Doc. 95, p. 37-38). The Court set a deadline of
September 23, 2016, for supplemental expert reports (Doc. 87; Doc. 95, p. 39).
By Order dated September 1, 2016, the class related discovery deadline was
extended from September 2, 2016, until November 2, 2016 (Doc. 88). The deadline to
serve supplemental expert reports was subsequently extended through November 2,
2016 (Doc. 104).
On September 8, 2016, the Court entered an Order dismissing Plaintiffs’ Amended
Complaint (Doc. 97). Plaintiffs filed a Second Amended Complaint (Doc. 107) on
September 23, 2016. The Second Amended Complaint contains a revised class
definition.
On November 2, 2016, Plaintiffs served Pulte with Mr. Miller's supplemental expert
report (the "Supplemental Report"). Pulte contends that the Supplemental Report
substantially modifies the opinions Mr. Miller expressed in his Original Report.
On November 11, 2016, after the instant motion was filed, Pulte took Mr. Miller's
deposition again, and asked questions pertaining to his Supplemental Report (Doc. 146
at 3).

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Pursuant to FED. R. CIV. P. 26(a)(2)(B)(i), a party's expert report is required to
include ''a complete statement of all opinions the witness will express and the basis and
reasons for them." And, although a party is required to make these disclosures "at the
times and in the sequence that the court orders," FED. R. CIV. P. 26(a)(2)(D), the rules
provide that a party “must supplement or correct” its expert disclosure or response “in a
timely manner if the party learns that in some material respect the disclosure or response
is incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known ....” FED. R. CIV. P. 26(e)(1)A) and (2).
Citing case law interpreting FED. R. CIV. P. 26(e) as limiting supplemental reports
to include only that additional information that was not available at the time of the initial
report, Pulte objects to the Supplemental Report, asserting that the new opinions
expressed therein “are just that—new—and based on investigations Mr. Miller could have
conducted prior to preparing the Original Report.” Pulte points out that Mr. Miller’s original
report did not contain any notation that it was preliminary or incomplete, nor did Mr. Miller
purport to reserve any right to amend or revise it. For their part, Plaintiffs acknowledge
that Mr. Miller’s supplemented opinions are based on a subsequent examination of a
much broader sample than he investigated prior to providing his Original Report and
deposition. But, Plaintiffs contend that they met all of the Court's deadlines, the
supplementation was appropriate in view of their Second Amended Complaint and the
subsequent investigation, and the sanction of striking an expert report is a drastic remedy
not warranted here.
As Pulte correctly observes, the rule regarding the duty to supplement is not an
opportunity to make an end-run around the requirements for timely expert disclosure.
That said, the circumstances here are not sufficient to support striking the Supplemental

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Report. The Court sees no evidence of bad faith on Plaintiffs’ part and, as Pulte deposed
Mr. Miller after receiving his Supplemental Report, the Court is not persuaded that Pulte
has been prejudiced. The motion is therefore DENIED.
DONE and ORDERED in Orlando, Florida on December 7, 2016.

Copies furnished to Counsel of Record

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