WTI, Inc. v. Jarchem Industries, Inc.
Filing
138
ORDER granting in part and denying in part 118 Motion to Exclude Expert Witness. The Motion is granted as to Dr. Lucina Lampila and denied as to Dr. John Jacobus. Plaintiff' 122 Motion to Compel is GRANTED. Jarchem shall provide the disc overy requested by WTI within 14 days of the entry of this Order. WTI is awarded attorneys fees for the bringing of the Motion to Compel and shall submit a statement of fees within seven (7) days of the entry of this Order. Jarchem shall have seven (7) days thereafter within which to file objections. Signed by Judge Richard W. Story on 01/11/13. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
WTI, INC.,
Plaintiff,
v.
JARCHEM INDUSTRIES, INC.,
Defendant.
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CIVIL ACTION NO.
2:10-CV-0238-RWS
ORDER
This case is before the Court for consideration of Plaintiff WTI, Inc.’s
(“WTI”) Motion to Exclude Expert Witnesses [118] and Motion to Compel
[122]. After reviewing the record, the Court enters the following Order.
Background of the Case
WTI originally filed this action in the Superior Court of Jackson County
against Jarchem Industries, Inc. (“Jarchem”) asserting claims for breach of
expressed warranties, breach of implied warranty of merchantability, breach of
implied warranty of fitness for a particular purpose, negligence per se,
negligence, breach of contract, and attorney’s fees. Jarchem removed the action
to this Court and filed a counterclaim against WTI.
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WTI filed a Motion for Leave of Court to Amend its Complaint [58] and
both parties filed Motions for Summary Judgment [59 and 61]. On July 30,
2012, the Court entered an Order [100] denying both parties’ Motions for
Summary Judgment and granting Plaintiff’s Motion for Leave of Court to
Amend its Complaint. The Amended Complaint asserted three (3) additional
claims against Defendant: an additional breach of contract claim, a claim for
fraud, and a claim for punitive damages [101].
The Order granting Plaintiff’s Motion for Leave of Court to Amend its
Complaint provided: “Plaintiff’s proposed Amended Complaint is deemed
ADMITTED as of the date of this Order. Because Plaintiff moved to amend
after the close of discovery, the Court will extend discovery for sixty (60) days
after the date of this Order. Should the parties elect to conduct additional expert
discovery during this time, the parties are reminded to follow Local Rules and
to notice the expert promptly.” (July 30 Order [100] at 37).
In that same Order, the Court denied WTI’s Motion to Exclude Expert
Kenneth McMillin [85]. The Court found that Jarchem failed to file the Local
Rules and the Federal Rules of Civil Procedure in designating McMillin as an
expert. However, the Court did not exclude McMillin for use at trial, “if
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Defendant properly notices the use of McMillin in the next phase of discovery.
However, Defendant must properly follow the Federal and Local Rules during
the next discovery phase and timely disclose McMillin, including his written
report.” Id. at 10 (footnote omitted).
Discussion
Plaintiff’s Motion to Exclude Expert Witnesses
Pursuant to the Court’s July 10 Order, the parties engaged in an
additional period of discovery for a period of sixty (60) days following entry of
the Order. On September 12, 2012, Jarchem filed its Third Supplemental Initial
Disclosures [106] which included an unsigned expert report by McMillin.
These Disclosures also included an attachment that provided notice regarding
two additional experts. The disclosure stated: O. John Jacobus, Ph.D. “is
expected to offer testimony that Jarchem’s sodium diacetate is free of defects
which would cause it to turn to turbid in a water solution.” A curriculum vitae
for Dr. Jacobus was attached. The disclosures also stated: Lucina Lampila,
Ph.D. “is expected to offer testimony that Jarchem’s sodium diacetate is
compliant with the requirements of the Food Chemical Codex.” A curriculum
vitae for Dr. Lampila was also attached.
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On October 1, 2012, Jarchem filed its Fourth Supplemental Initial
Disclosures [115], which included a report by Dr. Jacobus.
On October 8, 2012, the parties submitted a Consent Motion [116]
extending discovery through December 11, 2012 which was granted by Order
[117] entered on October 9, 2012. On December 10, 2012, Jarchem filed a
Motion seeking an extension of discovery through January 10, 2013, which
Motion was granted by Order [133] of the Court entered on December 12, 2012.
WTI filed a Motion [118] to exclude any expert testimony by Dr. Jacobus
or Dr. Lampila. WTI contends that the Supplemental Disclosures filed by
Jarchem failed to satisfy the requirements of Federal Rule of Civil Procedure
26(a) and Local Rule 26.2C. First, WTI asserts that the expert reports are not
signed as required by Federal Rule of Civil Procedure 26(a)(2)(A). The report
submitted for Dr. Jacobus fails to meet this clearly-stated requirement of the
Rules. However, the Court finds that the failure to sign the report, alone, is not
a sufficient basis for excluding the expert. Under these circumstances, the
Court finds the failure to be harmless. See Jenkins v. Bartlett, 487 F.3d 482,
488 (7th Cir. 2007).
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WTI also objects to the disclosures as untimely. Essentially, WTI asserts
that the experts should have been disclosed in the original discovery period that
occurred prior to the filing of the Amended Complaint. The Court agrees that
the subjects identified for these experts were a part of the case based upon the
original Complaint. However, when the Court granted WTI’s Motion to File an
Amended Complaint, discovery was re-opened. At that time, the Court
contemplated that new experts might be disclosed and required that the parties
comply with applicable discovery rules in that event. Thus, parties were
permitted to identify new experts in the new discovery period.
WTI also objects to Jarchem’s failure to provide expert reports for the
new expert witnesses. As to Dr. Lampila, no expert report has been provided.
Thus, the Court finds that Jarchem has failed to comply with the applicable rule
as to Dr. Lampila and GRANTS WTI’s Motion to Exclude her as a witness.
As to Dr. Jacobus, an expert report was provided with Defendant’s
Fourth Supplemental Initial Disclosure dated October 1, 2012. While an earlier
disclosure would have been more appropriate, the Court finds that Dr. Jacobus
should be permitted to testify concerning opinions set out in that report. WTI
filed its Motion to Exclude Dr. Jacobus soon after his report was filed. It is not
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apparent from the docket whether WTI withheld deposing Dr. Jacobus pending
a decision by the Court or proceeded with the taking of his deposition. In the
event he has not been deposed, discovery is extended for fourteen (14) days for
the sole purpose of allowing WTI to take the deposition of Dr. Jacobus.
Based on the foregoing, WTI’s Motion to Exclude Expert Witnesses
[118] is GRANTED IN PART and DENIED IN PART. The Motion is
granted as to Dr. Lampila but denied as to Dr. Jacobus.
Motion to Compel
In its Amended Complaint, WTI asserted a claim for punitive damages
against Jarchem. Seeking discovery with respect to the punitive damages claim
on August 23, 2012, WTI served Plaintiff’s Second Interrogatories and
Plaintiff’s Third Request for Production of Documents and Other Evidence on
Jarchem. [104 and 105]. Jarchem objected to the Interrogatories and Requests.
Despite good faith efforts to resolve the dispute, Jarchem continues to refuse to
respond to the Interrogatories and Requests.
Jarchem’s objection to the discovery is primarily based upon Georgia law
that requires an evidentiary showing that a factual basis exists for punitive
damages before a party can obtain discovery of financial resources. Holman v.
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Burgess, 199 Ga. App. 61, 64 (1991). Though state courts may require such an
evidentiary showing, “federal law does not require any demonstration beyond
Rule 26(b) relevance to allow a party to obtain financial information, including
tax records, through discovery.” Callaway v. Papa John’s USA, Inc., Case No.
09-61989-Civ, 2010 WL 4024883, *2 (S.D. Fla. October 12, 2010). The Court
finds that the information sought by WTI is relevant to the punitive damages
claim, and therefore, it is discoverable.
Jarchem also asserts a general objection to the overbreadth of WTI’s
request. However, Jarchem fails to address the specific requests and the basis
for his assertion for overbreadth. “Courts have the duty to pare down overbroad
discovery requests under Rule 26(b)(2), which provides that information may
sometimes be withheld, even if relevant. The objecting party, however, must do
more than simply intone the familiar litany that the interrogatories are
burdensome, oppressive or overly broad before a court will narrow overbroad
discovery. Instead, the objecting party must show specifically how each
question is overly broad, burdensome or oppressive.” Williams v. The Art Inst.
of Atlanta, Civ. Act. No. 1:06-CV-285-CC/AJB, 2006 WL 3694649, at *4
(N.D. Ga. September 1, 2006)(internal citations and quotations omitted).
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Finally, Jarchem asserts that the requested information is not
discoverable “because several of Plaintiff’s alleged causes of action do not
support punitive damages” and because punitive damages are capped under
Georgia law. (Resp. Br. [126] at 13-14). While it is true that some of WTI’s
claims against Jarchem will not support a claim for punitive damages, claims
are asserted that will support such damages. Further, it is not clear that the
punitive damages cap will apply in this case.
Therefore, discovery by WTI is permitted. Plaintiff’s Motion to Compel
[122] is GRANTED. Jarchem shall provide the discovery requested by WTI
within fourteen (14) days of the entry of this Order. WTI is awarded attorney’s
fees for the bringing of the Motion to Compel and shall submit a statement of
fees within seven (7) days of the entry of this Order. Jarchem shall have seven
(7) days thereafter within which to file objections.
Conclusion
Plaintiff’s Motion to Exclude Expert Witnesses [118] is GRANTED IN
PART and DENIED IN PART. The Motion is granted as to Dr. Lucina
Lampila and denied as to Dr. John Jacobus. Plaintiff’s Motion to Compel [122]
is GRANTED. Jarchem shall provide the discovery requested by WTI within
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fourteen (14) days of the entry of this Order. WTI is awarded attorney’s fees
for the bringing of the Motion to Compel and shall submit a statement of fees
within seven (7) days of the entry of this Order. Jarchem shall have seven (7)
days thereafter within which to file objections.
SO ORDERED, this 11th
day of January, 2013.
________________________________
RICHARD W. STORY
United States District Judge
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