SAMS HOTEL GROUP, LLC v. ENVIRONS, INC. et al

Filing 177

ORDER ON PLAINTIFF'S OBJECTION TO DEFENDANTS' EXPERT OPINION - The Court SUSTAINS SAMS' Objection to Environs' untimely expert rebuttal disclosure and precludes Environs' from presenting the evidence related to the recently filed expert report at trial. Signed by Judge Tanya Walton Pratt on 7/6/2011.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SAMS HOTEL GROUP, LLC d/b/a
HOMEWOOD SUITES HOTEL,

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Plaintiff,
v.
ENVIRONS, INC.
Defendant.

Cause No. 1:09-cv-0930-TWP-TAB

ORDER ON PLAINTIFF’S OBJECTION TO DEFENDANTS’ EXPERT OPINION

This matter is before the Court on Plaintiff, SAMS Hotel Group, LLC d/b/a Homewood
Suites Hotel’s (“SAMS”), Objection to Defendant, Environs, Inc.’s (“Environs”), expert report
of William Norman (“Norman”). The Court will not delve into the factual background of the
case, as the parties are well versed. The Court will, however, restate the fact that this five day
bench trial is scheduled to commence on July 11, 2011 at 9:00 a.m. For the following reasons,
SAMS’ Objection to William Norman’s Supplemental Report (Dkt. 172) is SUSTAINED.
I.

DISCUSSION

Pursuant to Rule 26(a)(2), a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence and must make these disclosures at the times and
in the sequence that the court orders. Fed. R. Civ. P. 26(a)(2)(D). Custom Foam Works, Inc. v.
Hydrotech Systems, Ltd., No. 09–cv–0710–MJR, 2011 WL 2161106, at *1 (S.D. Ill. June 01,
2011). Rule 26(a)(2)(B) requires expert witness disclosures to include, inter alia, a complete
statement of all opinions the witness will express and the basis and reasons for them. Id.; Fed. R.
Civ. P. 26(a)(2)(D). Rule 26(a)(2)(D) also requires that, absent a court order, a disclosure must

be made (i) at least 90 days before the date set for trial or for the case to be ready for trial or (ii)
if the evidence is intended solely to contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's
disclosure. Id. (emphasis added); Fed. R. Civ. P. 26(a)(2)(D).
On March 15, 2011, nearly three months ago, Judge Baker found the following:
After litigation began, Plaintiff identified McClain as a fact witness in its initial
disclosures and produced documents containing his conclusion that “all three
towers were to have been shear towers to take the wind/seismic loads on the
building. If this were the case then all three towers should have had a properly
designed mat footing under each tower.” … Defendant now has an opportunity to
cure any alleged prejudice without disrupting the trial date by deposing McClain
and retaining its own structural engineer, thereby undercutting Defendant’s claim
of “trial by surprise.”
Dkt. 143 at 2-3. Through this Order, Environs was put on notice of the Court’s unwillingness to
preclude expert testimony of SAMS’ James McClain related to observations contemplated and
formed as a structural engineer before the present litigation.
Further, Judge Baker was explicit in providing a framework for the potential avenues
available for Environs. Environs, however, chose to neither depose McClain, nor timely submit a
rebuttal report addressing the challenged testimony of McClain. Now, on the eve of trial,
Environs has submitted to this Court and to opposing counsel, a “supplemental” expert report
addressing these issues. This report, filed on June 15, 2011, three months after Judge Baker’s
ruling on McClain’s testimony and approximately one month before the trial date is untimely.
The Court agrees with SAMS; whether the additional opinions of Norman are viewed as a
“supplemental” expert opinion or a rebuttal to Mr. McClain’s opinion, Environs’ disclosure is
too late. If admitted at trial, the prejudice and surprise of this untimely report would be
significant to SAMS. Environs, therefore, will not be permitted to present testimony related to
the recently added expert report of Norman. (Dkt. 164, Def.’s Ex. 340).

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II.

CONCLUSION

For the foregoing reasons, the Court SUSTAINS SAMS’ Objection to Environs’
untimely expert rebuttal disclosure and precludes Environs’ from presenting the evidence related
to the recently filed expert report at trial.

SO ORDERED.

Date:

07/06/2011

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Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution to:
Michael Paul Bishop
COHEN GARELICK & GLAZIER
[e-mail]

M. Edward Krause III
COHEN GARELICK & GLAZIER
[e-mail]

John Michael Bowman
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Donna C. Marron
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Colin Edington Connor
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Brett E. Nelson
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Frederick D. Emhardt
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

George M. Plews
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

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