Whitesell Corporation v. Whirlpool Corporation et al

Filing 702

MEMORANDUM OPINION AND ORDER denying 693 motion to strike the new opinions and schedules of Defendant's financial expert, Richard Bero ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

W H I T E S E L L CORPORATION, P l a in tif f , C a se No. 1:05-CV-679 v. H O N . ROBERT HOLMES BELL W H I R L P O O L CORPORATION, W H IR L P O O L MEXICO S.A. de C.V., a n d JOSEPH SHARKEY, D e f e n d a n ts , and W H I R L P O O L CORPORATION, C o u n te r- P l a in tif f , v. W H I T E S E L L CORPORATION, C o u n ter -D e f e n d a n t. / M E M O R A N D U M OPINION AND ORDER T h is matter is before the Court on Plaintiff Whitesell Corporation's motion to strike th e new opinions and schedules of Defendant Whirlpool Corporation's financial expert, R icha rd Bero, disclosed on January 18, 2010. (Dkt. No. 693.) "Absent a stipulation or a court order," expert reports are due "at least 90 days before th e date set for trial." Fed. R. Civ. P. 26(a)(2)(C). For an expert report properly submitted, " [ a]n y additions or changes to [the information contained in the report] must be disclosed by

th e time the party's pretrial disclosures under Rule 26(a)(3) are due." Fed. R. Civ. P. 2 6 (e )(2 ). Although pre-trial disclosures under Rule 26(a)(3) are generally due thirty days b e f o re trial, Fed. R. Civ. P. 26(a)(3)(B), in this case the parties amicably agreed to exchange p re -tria l disclosures seven days before trial, or January 18, 2010.1 On January 18, 2010, D e f en d a n t submitted to Plaintiff an "updated" version of the expert report prepared by D e f en d a n t's damages expert Richard Bero, the original version of which was submitted May 1 1 , 2009. Thus, the timeliness of Mr. Bero's final report depends on whether it supplements h is original report or whether it conveys entirely new opinions that should have been su b m itted at least 90 days before trial under Rule 26(a)(2)(C). T h is is not a case where Mr. Bero's January 18 report represents such an extreme d e p a rtu re from the opinions originally expressed that it should be classified as an altogether n e w report. Rather, information contained in the January 18 report previously not disclosed f a lls squarely within the purview of supplementary information gleaned throughout the c o u rs e of legitimate trial preparation. Accordingly, I T IS HEREBY ORDERED that Plaintiff's motion to strike the new opinions and s c h e d u le s of Defendant's financial expert, Richard Bero, (Dkt. No. 693) is DENIED.

Dated: January 25, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

Rule 26(a)(3)(B) generally requires a court order to alter the thirty day time limit, but it is not the prerogative of the Court, nor was the Court ever asked, to disrupt the parties' understanding pertaining to the pre-trial disclosure deadline. 2

1