GOODRICH v. SHEEHAN, ESQ et al

Filing 110

ORDER denying 104 Motion to Exclude Expert Witness and 104 Motion for Sanctions By MAGISTRATE JUDGE JOHN H. RICH III. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN GOODRICH,
Plaintiff
v.
MICHAEL L. SHEEHAN, ESQ., et al.,
Defendants

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No. 2:12-cv-388-JAW

ORDER ON PLAINTIFF’S MOTION TO EXCLUDE DEFENDANTS’ EXPERT WITNESS
AND FOR SANCTIONS
The plaintiff moves pursuant to Federal Rule of Civil Procedure 37(c) to exclude defense
expert Timothy Benoit, Esq., on the ground that the defendants failed to provide a written report
signed by Benoit or to set forth a complete statement of his opinions or the bases therefor, as
required by Federal Rule of Civil Procedure 26(a)(2). See Plaintiff Stephen Goodrich’s Motion
To Exclude Defendants’ Expert Witness and for Sanctions (“Motion”) (ECF No. 104) at 8-14. For
the reasons that follow, the motion is denied.1
I. Discussion
The plaintiff moves to strike the Benoit designation and for recovery of the plaintiff’s
reasonable attorney fees incurred in filing the Motion on the bases that the defendants failed to
provide either a written report prepared and signed by the witness, as required by Federal Rule of
Civil Procedure 26(a)(2)(B), or “a complete statement of all opinions the witness will express and
the basis . . . for them[,]” as required by Rule 26(a)(2)(B)(i). Motion at 10-14.

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During a September 3, 2014, teleconference, and by way of formal notice filed on September 9, 2014, I disclosed to
the parties that Benoit was my former partner at the Portland, Maine, law firm of Perkins Thompson. See ECF No.
106 at 1; ECF No. 107. I stated that I did not believe this constituted a basis for mandated recusal, but provided the
parties 15 days within which to file a motion for my recusal. See ECF No. 107. No motion was filed by the deadline
of September 24, 2014.

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With respect to the first point, the defendants correctly note that, during a June 5, 2014,
teleconference, I rejected the same argument when advanced by their counsel in connection with
their motion to strike the plaintiff’s experts. See Defendants’ Objection to Plaintiff’s Motion To
Exclude Expert Witness (“Objection”) (ECF No. 108) at 3; ECF No. 87 at 2 n.1.
Rule 26(a)(2)(B) provides that, “[u]nless otherwise stipulated or ordered by the court,” an
expert disclosure “must be accompanied by a written report – prepared and signed by the witness
– if the witness is one retained or specially employed to provide expert testimony in the case[.]”
Fed. R. Civ. P. 26(a)(2)(B). The court in this case has ordered otherwise, having issued a
scheduling order that provides, in relevant part, “All required information may, but need not, be
provided in the form of a written report prepared and signed by the expert.” ECF No. 10 at 2. The
defendants, hence, did not run afoul of Rule 26(a)(2)(B) in tendering an expert designation
prepared and signed by their counsel. See Defendants’ Expert Witness Designation – Timothy P.
Benoit, Esq. (“Benoit Designation”), Exh. A (ECF No. 104-1) to Motion.
With respect to the second point, the plaintiff argues that the defendants failed to provide
a “complete statement” of Benoit’s opinions because they stated that those opinions might change
based on Benoit’s review of additional discovery, or to supply the “basis” for the opinions that he
did express because they omitted “a detailed summary of the factual grounds and documents” upon
which he relied. Motion at 11.
In the Benoit Designation, the defendants noted that document discovery was not yet
complete at the time of the designation and advised that documents produced by nonparty EVO
PowerPay Holdings, LLC (“EVO”) might generate additional opinions or additional support for
the expressed opinions. See Benoit Designation at 4. The plaintiff complains that the defendants
“never intimated that they would be unable to serve complete expert disclosures by the August 19,

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2014 deadline; and it would be disingenuous at best for Defendants to suggest that Mr. Benoit’s
disclosure fully complies with Rule 26(a)(2) when it expressly anticipates adding new opinions at
a future date based on a further review of documents in their possession.” Motion at 11.
In so arguing, the plaintiff alludes to my June 5, 2014, ruling that his initial May 9, 2014,
expert disclosures “were inadequate despite several deadline extensions and that, rather than
seeking a further deadline extension on or prior to May 9, the plaintiff had chosen to file inadequate
disclosures, necessitating the defendants’ filing of their motion for sanctions.” ECF No. 87 at 3.
However, this situation is materially distinguishable. The plaintiff’s May 9, 2014, expert
disclosures were wholly facially deficient, essentially setting forth no opinions.2 By contrast, the
defendants set forth Benoit’s opinions, merely reserving the right to supplement them based on
ongoing discovery. The rules contemplate as much: a party must supplement its expert witness
disclosure “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 to the other parties during the discovery process or in writing[.]” Fed.
R. Civ. P. 26(e)(1)(A). In similar fashion, the plaintiffs’ experts, in the June 19 supplemental
disclosures that I found satisfied the requirements of Rule 26(a)(2)(B), see ECF No. 97 at 3,
reserved the right to supplement their disclosures as more information became available during the
course of the litigation.
While the defendants did not provide “a detailed summary of the factual grounds and
documents” upon which Benoit relied in forming his opinions, Motion at 11, they summarized the

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The plaintiffs supplemented these disclosures on June 3, 2014. See ECF No. 87 at 1-2. I noted that these
supplemental disclosures contained more detail than the May 9 disclosures but, “given the volume of documents
recently produced to the plaintiff, afforded him one final opportunity to supplement those disclosures.” Id. at 3. The
plaintiff availed himself of that opportunity, submitting June 19, 2014, supplemental disclosures that I ruled complied
with the requirements of Rule 26(a)(2)(B). See ECF No. 97 at 2-3. I never ruled that the June 3 supplemental
disclosures were inadequate.

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documents that he reviewed and set forth the facts, as Benoit understood them, and basic legal
principles upon which he relied in forming the opinions expressed. See Benoit Designation at 24. This sufficed to comply with the requirements of Rule 26(a)(2). See, e.g., Roach v. CUNA Mut.
Ins. Co., 385 Fed. Appx. 2, 5-6 (1st Cir. 2010) (“The purpose of the expert disclosure rules is to
facilitate a fair contest with the basic issues and facts disclosed to the fullest practical extent and
to prevent parties from seeking the unfair tactical advantage that can be gained by failing to unveil
an expert in a timely fashion.”) (citation and internal quotation marks omitted).
II. Conclusion
For the foregoing reasons, the Motion is DENIED.

NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 28th day of September, 2014.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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