Speaks v. Mazda Motor Corporation et al

Filing 80

ORDER granting 59 Motion for Discovery - objecting to untimely expert witness disclosure supplementation; denying 76 Motion to Strike. Signed by Chief Judge Dana L. Christensen on 3/16/2015. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
INCARNACION L. SPEAKS,

CV 14–25–M–DLC

Plaintiff,
ORDER

vs.
MAZDA MOTOR CORPORATION,
MAZDA MOTOR OF AMERICA, INC.,
d/b/a MAZDA NORTH AMERICAN
OPERATIONS,
Defendants.

Before the Court is Defendants’ motion objecting to the timeliness of
Plaintiff’s expert disclosure materials. For the reasons explained, the Court grants
the motion.
Discussion
On August 13, 2014, following a preliminary pretrial conference, and
pursuant to the parties’ agreed upon proposed dates, the Court issued its
Scheduling Order establishing, among other things, deadlines for expert
disclosures. Pursuant to the Scheduling Order, the deadline for disclosure of
Plaintiff’s damages experts and simultaneous disclosure of liability experts was
November 19, 2014.
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Under the heading “Expert Disclosure,” the Court’s Scheduling Order
provides that for specially retained experts “[e]ach party is responsible for
ensuring that expert reports . . . are complete, comprehensive, accurate, and
tailored to the issues on which the expert is expected to testify.” (Doc. 40 at 6.)
The Court’s Scheduling Order underscores that “[a]n inadequate report or
disclosure may result in exclusion of the expert’s opinions at trial even though the
expert has been deposed.” Id. (emphasis in original)1
In accordance with the Court’s Scheduling Order, Plaintiff submitted to
Defendants her expert reports and disclosures on November 19, 2014. On
December 3, 2014, Defendants filed a motion objecting to the sufficiency of
Plaintiff’s expert disclosures, contending that the disclosures improperly omitted
documents comprising the experts’ underlying work product. In particular,
according to Defendants, the expert report and disclosure for Plaintiff’s expert,
Steve Syson, referred to, but did not provide, various documents, including papers
authored by Mr. Syson, data underlying results from specific crash tests, and other
documents referenced in the report. (Doc. 52 at 2.) Additionally, Defendants

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The Court’s Scheduling Order also addresses “Supplementation of Incomplete or
Incorrect Expert Reports.” Id. at 7. This section of the Court’s Scheduling Order provides that
supplemental disclosures by experts specially retained are allowed up to no later than ninety days
before trial, if an expert report is “incomplete or incorrect.” Id. at 8 (emphasis in original.)
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asserted that the expert report and disclosure for Plaintiff’s expert, Michelle
Hoffman, was insufficient because it failed to provide Defendants with Ms.
Hoffman’s work product or any proposed trial exhibits.
On December 12, 2014, Plaintiff responded that, for the most part, all
supporting materials for the various experts’ opinions had been properly disclosed.
Regarding Ms. Hoffman’s report and disclosure, Plaintiff asserted that Plaintiff
had already “produced all the materials [Ms. Hoffman was] relying upon in
support of [her] opinions.” (Doc. 54 at 6.) With respect to Mr. Syson, Plaintiff
admitted that the report may require supplementation, and asserted that Plaintiff
would be “producing those materials to the Defendants in the very near future.”
Id. Plaintiff contended that this supplementation was permissible because
supplementation of an incomplete report is permissible under the Court’s
Scheduling Order and because there would be no harm to Defendants from
Plaintiff’s supplementation. Plaintiff further asserted that some materials
supporting the experts’ disclosures were lacking because Defendants had failed to
produce requested information during discovery.
By Order of January 12, 2015, the Court denied Defendants’ motion
because it did not comply with the Court’s Local Rules regarding discovery
motions.
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On January 16, 2015, approximately two months after the deadline for
expert disclosures established by the Court’s Scheduling Order, Plaintiff provided
Defendants with “additional supporting documents for Mr. Syson and Ms.
Hoffman’s reports.” (Doc. 59-1 at 1.) The new materials supporting Mr. Syson’s
report included more than 2,174 separate files. The new materials supporting Ms.
Hoffman’s report consisted of 74 photographs and three page of notes from an
additional surrogate study that Ms. Hoffman completed on January 6, 2015, almost
two months after the November 19, 2014 expert disclosure deadline.
On January 30, 2015, Defendants filed the instant motion objecting to
Plaintiff’s “supplementation” of her expert disclosures as untimely. (Doc. 59 at 3.)
Plaintiff responded that the untimely supplementation was made pursuant to an
agreement between counsel regarding disclosure of each “expert’s file” prior to
their respective depositions. (Doc. 67-1.) Plaintiff also argued that, in any case,
the late disclosure did not harm Defendants. Notably, Plaintiff did not contend
that the untimely disclosure of new materials was justified by the Court’s
Scheduling Order and its provision for supplementation of incomplete or incorrect
reports, nor did Plaintiff contend that the late supplementation was justified
because the materials were only recently obtained due to Defendants’ failure to
comply with Plaintiff’s discovery requests. Defendants replied that Plaintiff’s
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construction of the agreement between counsel was erroneous.
As proof of the agreement between counsel purportedly justifying the late
disclosure, Plaintiff attached to her response an email from Defendants’ counsel to
Plaintiff’s counsel. Defendants’ counsel wrote to Plaintiff’s counsel that “we now
have an agreement that . . . one week (at least 7 days) before each liability expert’s
deposition, opposing counsel will receive a copy of the expert’s file, meaning
everything that expert has assembled for this case and everything he or she will
use, refer to or rely upon, except anything that has already been served or
produced.” (Doc. 67-1 at 1.) This email was sent to Plaintiff’s counsel on January
19, 2015, just three days after Defendants served on Plaintiff a series of duces
tecum deposition notices for Plaintiff’s experts. These duces tecum notices
required Mr. Syson and Ms. Hoffman to provide various materials at their
scheduled depositions, including, among other things, “[y]our complete file with
regard to this matter.” (Doc. 69-1 at 4, 16.)
Given the language of the deposition notices, and the timing of the
agreement between counsel, the Court rejects Plaintiff’s construction of the
agreement between counsel. The Court views the email from Defendants’ counsel
as an agreement regarding the production of documents at the experts’ depositions
pursuant to the duces tecum deposition notices, and nothing more. As Defendants
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argue, there is no indication in the email, or anywhere, that Defendants were
waiving the Court’s deadline for expert disclosures. Indeed, in Defendants’
original motion objecting to the sufficiency of Plaintiff’s expert disclosures,
Defendants expressly noted that any attempt by Plaintiff to supplement their
experts’ disclosures would be untimely. Defendants are also correct that the
distinction between those limited materials provided for purposes of a Fed. R. Civ.
P. 26(a)(2)(B) disclosure and the materials constituting an expert’s “complete
file,” as contemplated in Defendants’ duces tecum deposition notices, should be
well understood. Indeed, Plaintiff’s counsel exhibited an understanding of this
distinction in response to Defendants’ motion objecting to the sufficiency of
Plaintiff’s expert disclosure by asserting that Plaintiff had already “produced all
the materials [Ms. Hoffman was] relying upon in support of [her] opinions.” (Doc.
54 at 6.) Plaintiff’s attempt to now supplement Ms. Hoffman’s expert disclosure
with “additional supporting documents for . . . Hoffman’s report[]” runs contrary
to this prior statement. (Doc. 59-1 at 1.) The agreement memorialized in the
January 19, 2015 email did not constitute a waiver by Defendants of the deadline
for expert disclosures.2

2

Plaintiff has filed a motion to strike Defendants’ reply in support the instant motion, or,
in the alternative, for leave to file a sur-reply. The Court denies the motion because the
objectionable portion of the Defendants’ reply is entirely immaterial to the Court’s analysis. Mr.
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The Court’s Scheduling Order is clear. Pursuant to the parties’ agreed upon
proposed dates, the Court established a November 19, 2014 deadline for expert
disclosures. It is the responsibility of counsel to ensure that their expert reports
“are complete, comprehensive, accurate and tailored to the issues.” (Doc. 40 at 6.)
Submission of an inadequate report has consequences. Enforcement of the expert
disclosure deadline is important to an efficient and orderly discovery process and
to a fair resolution of the parties’ dispute. The Court rejects Plaintiff’s argument
that Defendants are unharmed by the late disclosures. Failure to comply with the
expert disclosure deadline unnecessarily complicates discovery, prompts the filing
of otherwise unnecessary discovery motions, and disrupts judicial efficiency by
necessitating resolution of such discovery disputes by the Court. Accordingly, the
untimely disclosed materials will be excluded, and Plaintiff and her experts will be
precluded from using or relying upon the untimely materials.
IT IS ORDERED that Defendants’ motion objecting to Plaintiff’s untimely
expert witness disclosure supplementation (Doc. 59) is GRANTED.

Syson’s deposition testimony on the timeliness of Plaintiff’s disclosures of his materials carries
no weight with the Court. Thus, there is no need to strike that portion of the reply or for the
Court to consider a sur-reply from Plaintiff.
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IT IS FURTHER ORDERED that Plaintiff’s motion to strike (Doc. 76) is
DENIED.
DATED this 16th day of March 2015.

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