Bank of America, N.A. et al v. Kansas CVS Pharmacy, LLC

Filing 115

MEMORANDUM AND ORDER denying 106 Defendant's Motion in Limine. Signed by Chief Judge J. Thomas Marten on 5/29/14. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Bank of America, N.A. et al.,
Plaintiffs,
vs.

Case No. 11-2481-JTM

Kansas CVS Pharmacy, LLC,
Defendant.

MEMORANDUM AND ORDER

This matter is before the court on the Motion in Limine (Dkt.106) of defendant
Kansas CVS Pharmacy, seeking to exclude certain testimony of Laird Goldsborough, a
expert witness for the plaintiff Bank of America. Specifically, CVS challenges
Goldsborough’s determination of the value of the disputed property in part based upon
factors not explicitly mentioned in his report, namely the presence of a subtenant and the
property’s status as a local corporate headquarters. CVS argues that such opinions should
be excluded under Fed.R.Civ.Pr. 37(c), given the failure of Bank of America to supplement
Goldsborough’s report prior to the May 2, 2014 deadline.
The court hereby denies the motion to exclude. First, the court does not construe
Rule 37 to require supplementation where the additional grounds for the expert’s opinion

are fully and explicitly acknowledged in the expert’s deposition. The duty to supplement
arises when a party discovers that its earlier disclosure is incomplete in light of “additional
or corrective information [which] has not otherwise been made known to the other parties
during the discovery process.” Fed.R.Civ.P. 26(e)(1). See Clean Harbors, Inc. v. CBS Corp., 875
F.Supp. 1311, 1315 (D. Kan. 2012). For experts whose reports must be disclosed under Rule
26(a)(2) (B) “the party's duty to supplement extends both to information included in the
report and to information given during the expert's deposition.” Rule 26(e)(2). But, when
an expert fully acknowledges a supplemental basis for his opinion during his deposition,
there is no need for additional supplementation.
The obligation to supplement disclosures and discovery responses applies
whenever a party learns that its prior disclosures or responses are in some
material respect incomplete or incorrect. There is, however, no obligation to
provide supplemental or corrective information that has been otherwise made known
to the parties in writing or during the discovery process, as when a witness
not previously disclosed is identified during the taking of a deposition or
when an expert during a deposition corrects information contained in an earlier
report.
Advisory Committee Note to Rule 26(e) (emphasis added). Thus, in North Star Mutual
Insurance v. CNH America, No. 11-4133-KES, 2014 WL 397023 (D.S.D. March 6, 2014), the
court rejected a similar Rule 26 challenge where the plaintiff’s expert opined during his
deposition that a fuel tank was defective for a lack of shielding, an opinion not present in
his earlier written opinion explaining the tank’s defects. The court determined that there
was no violation of Rule 26 since the expert “did not change his opinion — he merely
supplemented his opinion,” and the evidence should not be excluded where “the substance

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of his opinion was disclosed to CNH well before trial and CNH has not shown any
prejudice.” Id. at *3.
Even if the court were to find that the plaintiff was obliged to supplement
Goldsborough’s report, it would still deny defendant’s motion to exclude. Rule 37 does not
require exclusion where the failure to supplement was harmless. See Woodworker's Supply,
Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). In considering the
issue, the court may consider “(1) the prejudice or surprise to the party against whom the
testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the [offending] party's bad faith
or willfulness.” Id.
Here, CVS acknowledges (Dkt. 107, at 4) that the plaintiff’s failure to supplement
was not a product of bad faith. Goldsborough’s report was produced on July 29, 2013, and
his deposition took place on October 9, 2013. During the deposition, Goldsborough openly
explained why he believed the subtenancy and headquarters status differentiated the
subject property from other comparables. The plaintiff accordingly has had ample time to
obtain evidence to rebut his conclusion. Further, the underlying facts — the existence of a
subtenant and the presences of the local CVS headquarters within the subject store — are
matters which were known to CVS prior to Goldsborough’s deposition.

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IT IS ACCORDINGLY ORDERED this 29th day of May that the defendant’s Motion
in Limine (Dkt. 106) is hereby denied.

s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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