Sibley et al v. Sprint Nextel Corporation et al

Filing 484

ORDER granting 432 motion for leave to supplement expert reports; granting in part and denying in part 439 motion to strike expert report. Signed by Magistrate Judge James P. O'Hara on 4/30/2013. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROXIE SIBLEY, et al.,
Plaintiffs,
v.
SPRINT NEXTEL CORPORATION,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 08-2063-KHV

ORDER
This is a class action brought by the former and current employees of defendants’
retail stores. Plaintiffs allege that defendants breached the terms of their compensation plans
and violated the Kansas Wage Payment Act by underpaying commissions to thousands of
employees as a result of systematic flaws in defendants’ computer systems. The case is
again before the undersigned U.S. Magistrate Judge, James P. O’Hara, on disputes over
expert discovery. Plaintiffs have moved the court to permit them to produce a second round
of supplemental reports from their experts (doc. 432). Plaintiffs have also moved to strike
a supplemental report of defendants’ expert that was produced on March 11, 2013 (doc.
439). Although the court concludes that the supplemental expert reports of both sides’
experts contain revisions that cannot be deemed proper supplementation under Fed. R. Civ.
P. 26(e), the court will nonetheless permit them, in large part, to be served under Fed. R.
Civ. P. 37(c). Accordingly, plaintiffs’ motion for leave to supplement expert reports is

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

1

granted and plaintiffs’ motion to strike the report of defendants’ expert is granted in part and
denied in part.
I.

Background
The parties exchanged the initial reports of their experts on October 15, 2012.

Plaintiffs served a report authored by both Barry Ezell and Nile Nickel of Balance Engines,
LLC, and a separate report of Margaret H. Dunham. Defendants served the report of Janet
R. Thornton. On December 12, 2012, plaintiffs served timely1 supplemental expert reports
of both Balance Engines and Dunham. Defendants, upon the court’s order,2 served a
supplemental expert report of Thornton on December 20, 2012. The parties exchanged
rebuttal expert reports on February 14, 2013. Expert depositions followed. Plaintiffs
deposed Thornton on February 28, 2013. Defendants deposed Dunham on March 1, 2013,
Nickel on March 5, 2013, and Ezell on March 6, 2013. During the depositions, each expert
testified that his or her calculations could be refined in ways that would make his or her
conclusions more accurate. At the pretrial conference held on March 7, 2013, plaintiffs
informed the court of their intention to file supplemental expert reports to correct
inaccuracies in expert calculations. Defendants objected to the supplementation, and the
court directed plaintiffs to file a motion seeking leave to supplement.

1

See Doc. 421 at 17.

2

Doc. 380.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

2

A.

Plaintiffs’ Second Supplemental Expert Reports

On March 11, 2013, plaintiffs filed their motion for leave to produce supplemental
reports of their experts. Plaintiffs represent that their experts have “discovered information
about their calculations that lead them to believe that making certain revisions to their code
will result in more accurate commissions calculations for the class.”3 Plaintiffs filed their
proposed second supplemental expert reports on April 17, 2013.4 Plaintiffs assert that the
revisions therein do not change their experts’ “overall methodology.”5
Defendants contend that plaintiffs’ proposed modifications “necessarily require a
change in their experts’ previous methodology.”6 Citing an affidavit by their expert,
Thornton, defendants argue that the proposed revisions would alter five of the six stages of
Balance Engines’s methodology. Thus, rather than supplement previous expert reports,
plaintiffs would be “wholly revis[ing] them.”7 Defendants also argue that they would be
prejudiced by the late supplementations because March 25, 2013, was the deadline for
dispositive and Daubert motions, and because they have already spent time and money
analyzing plaintiffs’ past expert reports, and preparing for and conducting the depositions of

3

Doc. 433 at 5.

4

Docs. 472-1, 472-2.

5

Doc. 433 at 5.

6

Doc. 437 at 4.

7

Id. at 5.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

3

plaintiffs’ experts.
B.

Defendants’ Second Supplemental Expert Report

On March 11, 2013, defendants served a second supplemental report of Thornton
without requesting or obtaining the court’s leave. Thornton’s second supplemental report
purports to address issues raised by plaintiffs’ counsel during Thornton’s deposition,
admissions during the depositions of plaintiffs’ experts, and the rebuttal reports of plaintiffs’
experts.8 According to defendants, Thornton’s report concludes that her underlying
methodology and conclusions were sound, but makes discrete updates to her programming
code.
On March 18, 2013, plaintiffs moved to strike Thornton’s second supplemental
report. Based on plaintiffs’ motion to strike, defendants agreed to withdraw twenty-eight
paragraphs of Thornton’s report.9 Plaintiffs contend, however, that fifteen additional
paragraphs contain improper sur-rebuttal to the rebuttal reports of plaintiffs’ experts and
must be stricken.10 Plaintiffs state that they do not object to the portions of Thornton’s

8

Doc. 440-1 at ¶ 2. Although defendants’ brief states that Thornton also reexamined
her methodology based, in part, on data and documents produced by plaintiffs between
March 4 and March 8, 2013, doc. 458 at 9, Thornton’s second supplemental report does not
suggest this.
9

Defendants have withdrawn paragraphs 5–18 and 33–46 of Thornton’s March 11,
2013 report. Doc. 458 at 11.
10

Plaintiffs object to paragraphs 3, 20, 21, 23–27, and 47–53 of Thornton’s March 11,
2013 report. Doc. 460 at 18 n.5.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

4

report correcting inaccurate calculations, so long as plaintiffs are permitted to serve revised
expert reports doing the same.
II.

Analysis
Fed. R. Civ. P. 26 governs the disclosure of expert testimony. It provides, in relevant

part, that an expert must submit a report that contains “a complete statement of all opinions
the witness will express and the basis and reasons for them.”11 Courts may set a time by
which the parties must submit their experts’ reports.12 A party bears a continuing obligation
to supplement expert reports if the party later learns the information initially provided is
incomplete or incorrect.13 When the expert disclosure rules are violated, Fed. R. Civ. P. 37(c)
mandates that the information or witness not fully disclosed is barred, unless the failure to
disclose was “substantially justified or harmless.”14
A.

Do the Supplemental Reports Violate Rule 26?

The scheduling order set October 15, 2012, as the deadline for filing expert reports
and December 12, 2012 (i.e., forty days before the discovery deadline), as the deadline for
supplementing expert reports.15 The latest round of supplemental reports clearly fall outside
those scheduling-order deadlines.
11

Fed. R. Civ. P. 26(a)(2)(B)(i).

12

Fed. R .Civ. P. 26(a)(2)(D).

13

Fed. R. Civ. P. 26(a)(2)(E) and 26(e).

14

Fed. R. Civ. P. 37(c)(1).

15

Docs. 114, 355.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

5

Looking to the procedural rules governing supplementation, Rule 26(e)(2) requires
that supplemental expert information be disclosed by the time pretrial disclosures are made
under Rule 26(a)(3), i.e., thirty days before trial unless otherwise set by the court. In this
case, the pretrial order—which now controls these proceedings—set the pretrial disclosure
deadline at twenty-one days before trial.16 Courts have made clear, however, that Rule
26(e)(2) does not permit a party to use the supplementing procedure to submit an amended
or rebuttal report not based on new information. Rather, “supplementation may only be
based upon additional or corrective information that was unavailable when the expert made
his or her initial report.”17 “A supplemental expert report that states additional opinions or
rationales or seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the original expert report
exceeds the bounds of permissible supplementation and is subject to exclusion under Rule
37(c).”18 Supplemental reports with relatively minor changes that simply correct inaccuracies
in the original report may be permitted, however.19
Such was the case in In re Cessna 208 Series Aircraft Prods. Liab. Litig.20 There,
U.S. District Judge Kathryn H. Vratil, who is also the presiding judge in the present wage
16

Doc. 436 at 29.

17

Bruner-McMahon v. Sedgwick Cnty. Bd. of Comm’rs, No. 10-1064-KHV, 2012 WL
33837, at *2 n.16 (D. Kan. Jan. 6, 2012).
18

In re Cessna 208 Series Aircraft Prods. Liab. Litig., No. 05-1721-KHV, 2008 WL
4937651, at *2 (D. Kan. Nov. 17, 2008).
19

Id.

20

Id.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

6

case, permitted the filing of a supplemental expert report which made two minor changes
to the expert’s opinions. During his deposition, the expert concluded that he had included
three incidents in his calculations that failed to meet his criteria and should have been
eliminated from his analysis. The expert then revised his report to reflect changes to his
opinions and findings that occurred when the extraneous data was eliminated. Judge Vratil
characterized this as “simply correcting inaccuracies in the original report” and found the
supplementation proper under Rule 26(e).21
Applying these principles below, the court finds that only portions of the proposed
reports of plaintiffs’ experts are proper Rule 26(e) supplements, while none of the report of
defendants’ expert is a proper Rule 26(e) supplement.
1.

Plaintiffs’ Second Supplemental Expert Reports

Plaintiffs have filed the proposed second supplemental report of Balance Engines,22
as well as the corollary second supplemental report of Dunham which opines on whether
Balance Engines’s new report is “the product of reliable principles and methods.”23 The
Balance Engines’s report includes changes to six areas of Balance Engines’s earlier
reports.24

21

Id.

22

Doc. 472-1.

23

Doc. 472-2.

24

The court notes that although plaintiffs’ motion to file supplemental expert reports
also sought leave to possibly revise “vacation revenue/credit” and to possibly merge “certain
O:\ORDERS\08-2063-KHV-432 & 439 .wpd

7

First, plaintiffs submit Balance Engines’s new calculations relating to “addons.”25
Balance Engines states that in its previous calculations, there were rare instances in which
addons were double counted and in which addons that fell within the look back period were
improperly counted. Balance Engines asserts that the cause of the errors was a small error
in its code caused by poor data standards in defendants’ underlying data. Balance Engines
also finished revising its calculations affected by defendants improperly coding data with
the “$” symbol—a problem Balance Engines had previously identified but had not had time
to fix.
The court will permit these proposed revisions under Rule 26(e). While a close call,
the court finds that these changes amount to corrections to inaccuracies in the first reports.
They result from a coding error and are not changes to Balance Engines’s methodology.
They are not changes made for the purpose of “deepening” Balance Engines’s conclusions.
Rather, they appear to make technical adjustments like the ones permitted in In re Cessna.
Balance Engines’s second category of revisions to its report involve calculations for
commissions that “roll up” from retail employees to their store managers and store hosts.
Balance Engines states that “[a] value called an ‘SCID’ is important in determining which
sales from which employees should roll up to whom in calculating commissions,” and that

PCT files,” it does not appear that the proposed reports plaintiffs ultimately filed made such
changes. Doc. 433 at 5.
25

The governing compensation plans set as commissionable events “addons”—services such as text messaging—but with the exclusion of services that were
deactivated during a prescribed look-back period.
O:\ORDERS\08-2063-KHV-432 & 439 .wpd

8

defendants did not provide a comprehensive SCID list.26 As a result, Balance Engines
attempted to create a standardized SCID list from various data produced by defendants. It
appears (though plaintiffs do not make this clear) that Balance Engines initially relied on two
data sets to compile SCID information, but because those data sets had incomplete and
conflicting SCID information, Balance Engines’s calculations were inaccurate. In Balance
Engines’s second supplemental report, Balance Engines seeks to report its roll-up
calculations reached when Balance Engines used many more data sets to complete its SCID
list.
The court will permit supplementation related to roll-up commissions. Again,
Balance Engines has not changed its underlying methodology. Balance Engines did not
change its determination of which sales from which employees should roll up when
calculating commissions. Rather, it revised its code to identify said group of sales from a
more comprehensive SCID list. The court deems this a technical correction of the sort to
be expected given the extraordinarily large data set with which the experts in this case were
working.
The third change to Balance Engines’s report relates to commissions for accessory
sales. Balance Engines proposes to use actual sales price in its commissions calculations,
rather than suggested retail price. Unlike the first two revisions, this revision does reflect
a change to Balance Engines’s analytical approach. Balance Engines has decided to rely on
26

Doc. 472-1 at ¶11.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

9

a different price to calculate these commissionable events. Plaintiffs provide no specific
reason why this change should be permitted. Balance Engines seems to be acting in
response to Thornton’s rebuttal analysis, rather than in response to new information or
discovery of a technical miscalculation. Thus, the court does not find this to be a proper
supplementation under Rule 26(e).
Balance Engines’s proposed second supplemental report also states that Balance
Engines “revised its code logic to address revenue targets being incorrectly calculated as
accessory sales.”27 It appears that this change was necessitated by a coding error. Given that
this makes a technical correction, it is a permissible supplementation.
Next, Balance Engines seeks to change an unspecified number of transactions from
being processed as “activations” to “neither an activation nor a deactivation” based on the
contentions of defendants’ expert.28 Balance Engines would also like to verify, “when the
relevant historical data exists,” that a contract renewal had no activity within governing
look-back periods. Plaintiffs do not explain what previously unavailable information
justifies these changed analyses. Nor do these proposed changes simply correct inaccurate
calculations. Instead, they appear to reflect a change in how Balance Engines has decided
to treat certain data, and appear to be based on criticisms from defendants and their expert.

27

Doc. 472-1 at ¶ 21.

28

The compensation plans set as commissionable events “net activations,” which were
defined as the total number of activations of service, less any subsequent deactivations
during a prescribed look-back period.
O:\ORDERS\08-2063-KHV-432 & 439 .wpd

10

Plaintiffs have failed to demonstrate that these changes amount to permissible
supplementation.
Finally, Balance Engines revised its calculations for employees on “guarantee”
status.29 Under the parties’ joint stipulation regarding expert analysis, it was agreed that the
experts would not calculate commissions for months in which defendants paid a class
member on a guarantee basis.30 Whether a class member was on guarantee status was
purportedly indicated on both the compensation statements and quota files that defendants
produced. Balance Engines used data from the quota files in making its initial calculations.
Balance Engines learned during the expert rebuttal process that there were discrepancies
between the compensation statements and quota files, with some employees being listed on
one but not the other.31 In Balance Engines’s proposed second supplemental report, Balance
Engines excluded from its calculations employees identified on either data set. This change
resulted in fewer months of unpaid commissions and the exclusion of certain class members
from Balance Engines’s damages’ calculation.
The court will permit these revisions affecting guarantee-status employees. They do
not change Balance Engines’s methodology or seek to strengthen or deepen its opinions.

29

New hires were not immediately placed on commission-based pay. Rather, they
were placed on a status called “guarantee” or “ramp-up” for a specified period of time at a
set rate of pay.
30

Doc. 357 at ¶¶ 5–7.

31

Defendants have not disputed the existence of these discrepancies.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

11

Rather, they correct technical errors caused by discrepancies in the data produced by
defendants. The resulting supplementation is therefore proper.
In summary, the court holds that the following portions of Balance Engines’s
proposed second supplemental report are proper supplements under Rule 26(e): new
calculations relating to addons, revisions related to roll-up commissions, revisions to
Balance Engines’s code logic to address revenue targets being calculated as accessory sales,
and new calculations for employees on “guarantee” status.

The proposed second

supplemental report of Dunham does not stand independently, but instead provides an audit
of work performed by Balance Engines in producing its proposed second supplemental
report. Thus, the portions of Dunham’s report that correlate to Balance Engines’s permitted
changes are also deemed proper supplements.
2.

Defendants’ Second Supplemental Expert Report

As noted above, the second supplemental report of Thornton that defendants served
on March 11, 2013, has been winnowed by the motions process.32 Defendants have agreed

32

The court fully agrees with defendants that plaintiffs should have followed the
directive of D. Kan. Rule 37.2 to meet and confer before filing their motion to strike the
report, and that so doing would have slimmed the report prior to the filing of the motion.
Despite this violation, the court will exercise its discretion and address the merits of the
motion. See White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., No.
07-2319, 2009 WL 722056, at *2 (D. Kan. March 18, 2009) (waiving non-compliance with
duty to confer to avoid further delay of resolution of the matter); Strasburg-Jarvis, Inc. v.
Radiant Sys., Inc., No. 06-2552, 2009 WL 129361, at *2 (D. Kan. Jan. 20, 2009) (electing
to address the merits of discovery dispute despite failure to confer).
O:\ORDERS\08-2063-KHV-432 & 439 .wpd

12

to remove over half the paragraphs in the report,33 and plaintiffs have agreed to deem ten
paragraphs of the report that contain introductory remarks or that, in plaintiffs’ estimation,
correct simple inaccuracies in Thornton’s calculations to be proper supplementations—so
long as the court also grants plaintiffs leave to file supplemental reports.34 Plaintiffs contend,
however, that the remaining fifteen paragraphs in the report should be stricken as improper
sur-rebuttal. The court agrees.
The court has carefully reviewed paragraphs 3, 20, 21, 23–27, and 47–53. The court
finds that each of these paragraphs contain Thornton’s response to issues raised in the
rebuttal reports of plaintiffs’ experts and generally attempt to provide additional rationale
for Thornton’s original calculations and conclusions. For example, in paragraph 3,
Thornton quotes from her previous reports and states that she has verified that her earlier
conclusions regarding Stage 3 data were correct, despite plaintiffs’ experts’ comments to the
contrary. Likewise, in paragraphs 20 and 21, Thornton addresses Balance Engines’s specific
criticism regarding her treatment of upgrades for pre-owned and reconditioned phones, and
explains why her original calculations are correct. Paragraphs 3, 20, 21, 23–27, and 47–53
do not contain revised conclusions based on newly available information, nor do they correct
inaccuracies in Thornton’s calculations.

Because these additions simply attempt to

strengthen Thornton’s opinions expressed in earlier reports, they “exceed the bounds of

33

See supra note 9.

34

Plaintiffs do not object to paragraphs 1, 2, 4, 19, 22, and 28–32.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

13

permissible supplementation.”35
As to the remaining portions of Thornton’s second supplemental report, even
plaintiffs characterize the modifications as fixing “calculation inaccuracies.”36 Plaintiffs
have a motivation to define them in this manner, as they mirror many of the sort of changes
plaintiffs’ experts propose to make (which the court rejected above). The court has
independently reviewed the modifications set out in paragraphs 19, 22, and 28–32, however,
and finds that they make substantive changes to Thornton’s approach to the data, rather than
simply correct calculations.
In paragraph 19, Thornton explains that in response to two specific paragraphs in
Balance Engines’s rebuttal report, which claimed that Thornton “failed to include ESPN
activations, included Net rather than Gross Boost and Virgin Mobile activations, failed to
apply the 2X payment for two Boost SKUs, failed to include modem cards in Customer
Retention, and excluded Reboost and Virgin Mobile card revenue . . . [and] failed to include
the additional ODR [“Order Detail Reports”] transactions related to Activations in my
analysis,” she “reviewed the programming logic and [] incorporated any necessary
modifications.”37 Defendants have not attempted to demonstrate that the “necessary
modifications” Thornton made after analyzing all of the identified problems were purely

35

In re Cessna, 2008 WL 4937651, at *2.

36

Doc. 460 at 18.

37

Doc. 440-1 at 177.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

14

technical, such as corrections to computer coding, rather than changes to her substantive
decision of what to include or not include in her analysis.
Likewise, in paragraph 22, in specific response to Balance Engines’s rebuttal report,
Thornton states that she “modified [her] calculations to include pre-owned phones as
commissionable Upgrades” and also, as it relates to customer retention, “included any SKU
that was identified as a ‘Gross Handset.’”38 These are clearly substantive changes to her
approach to calculating commissionable events.
Finally, paragraph 28 reports that in calculating the margin of error for her analysis,
Thornton “modified [her] calculations to rely on the commissions paid by Sprint as
suggested by Dr. Dunham.”39 Again, this reflects a substantive change to her methodology
and is not based on an earlier calculation error or newly available information.
The court strongly disagrees with defendants’ argument that criticisms of an expert’s
report that arise during the expert-rebuttal process amount to “new information” that may
be the basis for untimely expert supplementations.40 The data that Thornton used to perform
her revised analyses was available at the time of her earlier reports. Moreover, the court
rejects defendants’ argument that these revisions are simply “minor corrections.”41 While

38

Id. at 178.

39

Id. at 180.

40

Doc. 458 at 15.

41

Id. at 14.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

15

the determination of whether a change is “minor” may be subject to a fuzzy interpretation,
what is clear is that Thornton’s substantive changes discussed in paragraphs 19, 22, and 28
are no more minor than the substantive changes in Balance Engines’s proposed report to
which defendants object. Defendants can’t have it both ways. The changes reflected in
paragraphs 19, 22, and 28 amount to improper supplementation of Thornton’s expert report.
Paragraphs 29–32 state Thornton’s conclusions based on her new calculations. As
the new calculations are not proper supplements, nor are Thornton’s conclusions arising
therefrom. With this finding, there are no portions of Thornton’s second supplemental
report that remain as proper Rule 26(e) supplementations.
B.

Should the Reports be Permitted under Rule 37(c)?

Although the court finds the second supplemental expert reports untimely under
Rule 26(a) and, except for modifications in four areas of the reports of plaintiffs’ experts,
not appropriate supplements under Rule 26(e), the court could nonetheless permit the filing
of the reports under Rule 37(c). “Rule 37(c) permits a district court to refuse to strike expert
reports and allow expert testimony even when the expert report violates Rule 26(a) if the
violation is justified or harmless.”42 “The determination of whether a Rule 26(a) violation

42

Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002); see also Cessna,
2008 WL 4937651, at *3 (“Rule 37(c)(1) provides that a party that without substantial
justification fails to disclose information required by Rule 26(a) or 26(e) is not—unless such
failure is harmless—permitted to use as evidence at a trial, at a hearing or on a motion any
witness or information not so disclosed.”).
O:\ORDERS\08-2063-KHV-432 & 439 .wpd

16

is justified or harmless is entrusted to the broad discretion of the district court.”43 While the
court “need not make explicit findings concerning the existence of a substantial justification
or the harmlessness of a failure to disclose,” the court should be guided by the following
factors: (1) the prejudice or surprise to the party against whom the testimony is offered; (2)
the ability to cure any prejudice; (3) the potential for trial disruption if the testimony is
allowed; and (4) the erring party’s bad faith or willfulness.44
Plaintiffs make no argument that Thornton’s second supplemental report should be
excluded under Rule 37(c).
Defendants do argue that the second supplemental reports of Balance Engines and
Dunham should be excluded under Rule 37(c). First, defendants assert that they will be
prejudiced if plaintiffs are permitted to serve the reports, which were disclosed for the first
time on April 17, 2013, because the deadline for Daubert and dispositive motions was
March 25, 2013. Defendants filed both a summary judgment motion45 and a Daubert
motion,46 based in part on the Rule 26 reports of plaintiffs’ experts as they stood on that date.
Defendants broadly suggest that allowing plaintiffs’ requested supplements will necessitate

43

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir. 1999) (quoting Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353,
1363 (7th Cir. 1996)).
44

Id.; see also Gutierrez v. Hackett, 131 F. App’x 621, 625–26 (10th Cir. 2005).

45

Doc. 447.

46

Doc. 445.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

17

additional expert depositions and new Daubert motions.
The court agrees with plaintiffs, however, that defendants’ claims of prejudice are
unsupported: “While Sprint argues that it will incur additional costs, it fails to explain why.
While Sprint argues that Daubert motions will be affected, it does not explain how.”47
Plaintiffs note that defendants became aware of the proposed revisions to their experts’
reports when plaintiffs filed their motion to supplement on March 11, 2013—before the
Daubert and dispositive motion deadlines (and on the same day that defendants’ served the
supplemental report of Thornton)—yet did not request further discovery. Moreover, defense
counsel questioned plaintiffs’ experts about the proposed changes at their depositions. The
court therefore finds that defendants have not supported their assertion of prejudice and
cannot claim surprise at the supplemental reports of Balance Engines and Dunham.
In any event, even if some prejudice to defendants does exist, that prejudice likely can
be cured. The trial in this case is not scheduled to begin until October 7, 2013—more than
five months from now. Should defendants truly believe it necessary, they may seek leave
to reopen expert discovery and/or to supplement their Daubert motion (mindful that the
court will extend plaintiffs the same courtesies). The trial date should not be affected.
Finally, there are no allegations that either side or their experts acted in bad faith or
attempted to “sandbag” their opponents by intentionally withholding information from
earlier expert reports. Rather, it is clear to the court that the modifications the experts now
47

Doc. 438 at 7.

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

18

propose have arisen out of the expert rebuttal and deposition process, and are the result of
a conscientious effort to ensure that their analyses are accurate such that this case is decided
on a correct presentation of the facts.
The court therefore concludes that the failure of the parties to produce the new
calculations discussed in the second supplemental reports of their experts within the Rule
26(a) time constraints was harmless. The court will not require the exclusions of these
portions of the reports under Rule 37(c). Accordingly, the reports of Balance Engines and
Dunham may be produced in their entirety. The report of Thornton may be produced in
corrected format, containing only paragraphs 1, 2, 4, 19, 22, and 28–32.48
IT IS THEREFORE ORDERED:
(1)

Plaintiffs’ motion for leave to supplement expert reports (doc. 432) is granted.

Plaintiffs shall produce the second supplemental reports of Balance Engines and Dunham
by May 3, 2013.
(2)

Plaintiffs’ motion to strike the March 11, 2013 second supplemental report of

Thornton (doc. 439) is granted in part and denied in part. Thornton’s original second
supplemental report shall be stricken, and defendants shall produce a revised second
supplemental report by May 3, 2013.
48

Defendants shall remove the paragraphs that they have agreed to withdraw in
response to plaintiffs’ motion to strike (i.e., paragraphs 5–18 and 33–46) and the paragraphs
that the court has found to be purely sur-rebuttal without any new calculations (i.e.,
paragraphs 3, 20, 21, 23–27, and 47–53).

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

19

Dated April 30, 2013, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

O:\ORDERS\08-2063-KHV-432 & 439 .wpd

20