Equal Employment Opportunity Commission v. Performance Food Group, Inc. et al

Filing 215

MEMORANDUM AND ORDER denying 200 Plaintiff's Motion to Strike. Signed by Magistrate Judge Beth P. Gesner on 7/27/2018. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,

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v.

Civ. No.: MJG-13-1712
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PERFORMANCE FOOD GROUP, INC., et al.
Defendants.

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MEMORANDUM AND ORDER
Now pending before the court are Plaintiff’s Motion to Exclude the April 16, 2018 Expert
Report of Stephen G. Bronars PhD. (“Motion”) (ECF No. 200), Defendant’s Memorandum of
Law in Opposition to Plaintiff’s Motion To Exclude the April 16, 2018 Expert Report of Stephen
G. Bronars PhD. (“Opposition”) (ECF No. 208), and Plaintiff EEOC’s Reply Brief in Support of
Its Expedited Motion to Exclude the April 16, 2018 Expert Report of Stephen G. Bronars PhD
(“Reply”) (ECF No. 212). No hearing is necessary. Loc. R. 105.6. For the reasons discussed
below, plaintiff’s Motion is DENIED.

I.

Background
Plaintiff, the United States Equal Employment Opportunity Commission (“plaintiff,” or

“EEOC”), filed this employment action against defendants Performance Food Group, Inc. and
associated entities (“defendants”) on June 13, 2013, alleging unlawful sex-based discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
(ECF No. 1.) The case was referred to the undersigned by Judge Garbis for all discovery and

related scheduling, pursuant to 28 U.S.C. § 636(c) and Local Rule 301, on May 22, 2018. (ECF
No. 209.)
Plaintiff’s Motion seeks to exclude the defendants’ supplemental expert report of Dr.
Stephen G. Bronars, PhD. (“Dr. Bronars”) pursuant to Fed. R. Civ. P. 16, 26, and 37 on the
grounds that it is not a true “supplemental” report under Fed. R. Civ. P. 26 and, thus, it was
untimely filed. (ECF No. 200–1). In its Opposition, defendants states that the report is a true
supplemental report and was timely filed in accordance with the scheduling order governing the
case at the time. (ECF No. 208). Defendants also argue that even if the court finds the report is
not a true supplemental report, plaintiff has not been prejudiced and exclusion is not warranted.
Id.
The scheduling order relevant to this motion was issued in accordance with a joint motion
filed by the parties. (ECF Nos. 190–1 and 191). This scheduling order provided that defendants
were required to “name all expert witnesses and serve EEOC with expert report(s)” by December
18, 2017. (ECF No. 191). The EEOC then had until March 5, 2018 to “name any rebuttal expert
witnesses and serve PFG with rebuttal expert reports.” Id. Lastly, the close of expert discovery
was April 16, 2018. Id. Defendants filed Dr. Bronars’ first report in a timely manner on
December 18, 2017, and plaintiff timely submitted its rebuttal expert report.

Defendants

provided plaintiff with Dr. Bronars’ supplemental report on April 16, 2018, the final day of
expert discovery. Thereafter, plaintiff filed the present Motion seeking to exclude Dr. Bronars’
report. No trial has been set in this case and summary judgment briefing has been stayed
pending the resolution of other pending motions. (ECF No. 213).

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II.

Standard
Pursuant to Federal Rule of Civil Procedure 26, if a witness “is one retained or

specifically employed to provide expert testimony in the case,” such a witness must provide a
written expert report. Fed. R. Civ. P. 26(a)(2)(B). A party must supplement its expert disclosure
when it “learns that in some material respect the disclosure or response is incomplete or
incorrect.” Fed. R. Civ. P. 26(e)(A). The parties “must make these disclosures at the times and
in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). The “duty to supplement
extends to both information included in the report and to information given during the expert’s
deposition. Any additions or changes to this information must be disclosed” at least 30 days
before trial. Fed. R. Civ. P. 26(e)(2); Fed. R. Civ. P. 26(a)(3). If a party fails to disclose or
supplement the information required by Rule 26(a) or (e), “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

III.

Discussion
The threshold issue here is whether Dr. Bronars’ report is a true supplement to his initial

report or an untimely new report in violation of the court’s discovery schedule.
“Supplementation under the Rules means correcting inaccuracies, or filling the interstices of an
incomplete report based on information that was not available at the time of the initial
disclosure.” EEOC v. Freeman, 961 F. Supp. 2d 783, 797 (D. Md. 2013) (citing Keener v.
United States, 181 F.R.D. 639, 640 (D. Mont. 1998)). “Courts distinguish true supplementation
(e.g., correcting inadvertent errors or omissions) from gamesmanship” when analyzing whether a
report is supplemental. East West, LLC v. Rahman, No. 1:11CV1380, 2012 WL 4105129, at *6

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(E. D. Va. Sept. 17, 2012) (citing Gallagher v. Southern Source Packaging, LLC, 568 F. Supp.
2d 624, 631 (E.D.N.C. 2008)). The rule “does not cover failures of omission because the expert
did an inadequate or incomplete preparation.” Akeva, LLC. v. Mizuno Corp., 212 F.R.D. 306,
310 (M.D.N.C. 2002). Rule 26(e) “envisions supplementation when a party’s disclosures happen
to be defective in some way so that the disclosure was incorrect or incomplete, and therefore,
misleading . . . To construe supplementation to apply whenever a party wants to bolster or
submit additional expert opinions would wreak havoc in docket control and amount to unlimited
expert opinion preparation.” Akeva, 212 F.R.D. at 311.
In this case, Dr. Bronars’ supplemental report (ECF No. 200-5) reaches the same
conclusion as the first report, but includes new opinions and more sophisticated analyses and
statistical modeling. The first report was largely a critique of plaintiff’s first expert report,
attacking the statistical methods and conclusions reached.

In his supplemental report, Dr.

Bronars reaches the same conclusion but also details his own analysis using different statistical
methods. Notably, the supplemental report does not correct any errors or omissions in the first
report and is based on materials and information that were available to Dr. Bronars when he
submitted his first report, not based on newly discovered evidence. The supplemental report
appears to be “intended both as an expansion of [defendant’s] earlier report as well as a means to
impermissibly broaden the scope of the expert opinions that Defendants seek to admit.” East
West, LLC, 2012 WL 4105129, at *7. Accordingly, I conclude that Dr. Bronars’ supplemental
report is not a true supplement to his initial report consistent with Federal Rule of Civil
Procedure 26(e). I turn now to the question of whether exclusion of the report, as plaintiff
requests, is warranted.

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Pursuant to Federal Rule of Civil Procedure 37(c)(1), if a party fails to provide
information required by Rule 26 or a court’s scheduling order, exclusion is appropriate unless the
failure “was either substantially justified or is harmless.” District courts have broad discretion in
making this determination. Bresler v. Wilmington Trust Company, 855 F.3d 178, 190 (4th Cir.
2017). Courts in the Fourth Circuit consider the following factors courts in evaluating whether
nondisclosure of evidence is substantially justified or harmless:
(1) the surprise to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the extent to which allowing
the evidence would disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure to disclose the
evidence.
Id. at 596. The first and last factors do not support a finding of substantial justification or
harmlessness.

As to the first factor, plaintiff was presumably surprised when defendants

submitted the supplemental report on the final day of discovery, given that it contained new
expert opinions. The report, however, does appear to be consistent with defendants’ litigation
position. See In re Mercedes-Benz Antitrust Litigation, No. 99–4311, 2006 WL 2129100, at *9
(D. N.J. July 26, 2006) (surprise to opposing party is minimal when new information is entirely
consistent with party’s position throughout litigation). And as to the last factor, defendants have
not provided any explanation for its belated disclosure of the expert report, other than the
argument that the report was compliant with Rule 26(e), an argument which I have rejected.
The remaining three factors, however, support the conclusion that exclusion is not
warranted. Given that no trial date has been scheduled and summary judgment briefing has been
stayed pending the resolution of other pending motions that have not been fully briefed, there is
ample time to cure any surprise. See SAS Institute Inc. v. Akin Gump Strauss Hauer & Field,
LLP, 2012 WL 12914641, *4 (E.D.N.C. Dec. 11, 2012) (“Courts within the Fourth Circuit

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generally deny motions to strike in cases where the surprise is curable.”) Moreover, there is no
question that the evidence at issue is important, as it pertains to the conclusions reached by the
parties’ experts on the core issue in the case, whether gender discrimination occurred. Given the
schedule in this case, there is ample time to cure any surprise. Any potential prejudice to
plaintiff can be cured by allowing plaintiff : (1) to depose Dr. Bronars solely on his new opinions
at defendants’ expense; and (2) to submit a rebuttal report from its own expert addressing Dr.
Bronars’ new opinions. In sum, exclusion of Dr. Bronars’ supplemental report is not warranted.

IV.

Conclusion
For the reasons set forth above, it is hereby ORDERED that:
1. Plaintiff’s Motion (ECF No. 200) is DENIED.
2. Plaintiff shall be permitted to depose Dr. Bronars for the limited purpose of
inquiring as to the opinions offered by Dr. Bronars’ in his supplemental report.
This deposition will be limited to 2 hours and, unless otherwise agreed to by the
parties, should occur by no later August 31, 2018.
3. Plaintiff may produce a final rebuttal report by Dr. Sisolak for the limited
purpose of rebutting the opinions offered in Dr. Bronars’ supplemental report.
Unless otherwise agreed to by the parties, this final report is due by no later than
September 28, 2018.
4. Any expert fees and costs incurred by the plaintiffs as a result of Dr. Bronars’
deposition shall be paid for by defendants.

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Date: July 27, 2018

/s/
Beth P. Gesner
Chief United States Magistrate Judge

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