Ohio Security Insurance Company v. Western Insurance Fire Protection Company
Filing
30
ORDER. IT IS ORDERED that Ohio's 23 motion to exclude Western States' experts is GRANTED. IT IS FURTHER ORDERED that Ohio's 26 motion in limine to exclude Western States' experts is GRANTED IN PART and DENIED IN PART. It is GRANTED to the extent it invokes Rule 615 to exclude all non-party witnesses from the courtroom and to the extent it seeks to exclude the testimony of Western States' experts. It is DENIED in all other respects. Signed by Judge Donald W. Molloy on 9/9/2021. (NOS)
Case 9:20-cv-00040-DWM Document 30 Filed 09/09/21 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
OHIO SECURITY INSURANCE
COMPANY,
CV 20-40-M-DWM
Plaintiff,
ORDER
vs.
WESTERN STATES FIRE
PROTECTION,
Defendant.
This case arises out of water damage to the Quality Inn & Suites, a hotel on
the westside of Missoula, that allegedly resulted from a defective dry sprinkler fire
protection system in February 2018. {See generally Y>oc. 5.) Plaintiff Ohio
Security Insurance Company (“Ohio”) insured the Quality Inn under a policy that
was in effect in February 2018. {Id.
2, 8.) Defendant Western States Fire
Protection Company (“Western States”) provided fire protection maintenance and
testing at the Quality Inn, including maintaining and testing the dry sprinkler
system. {Id.
10, 11.) Western States tested the sprinkler system in November
2017. (Doc. 18 at fifi 3(i),(j)). In February 2018, a coupling that was part of the
sprinkler system broke, discharging water into the Quality Inn. {Id.
3(kHm)).
In February 2020, Ohio brought suit against Western States in Montana state court,
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alleging one count of negligence. (Doc. 5.) Western States removed that in March
2020. (Doc. 1.)
I.
Pending Motions
The Court held a preliminary pretrial conference with the parties in
September 2020. (Doc. 18.) The Scheduling Order that resulted from that
conference set a deadline of May 6, 2021 for simultaneous disclosure of liability
experts and a deadline of June 3, 2021 for disclosure of Western State’s damages
experts. {Id. ^ 1.) The current motions result from defugalties concerning these
expert disclosure deadlines. Ohio moves to exclude Western State’s expert reports,
(Doc. 23), and moves in limine to exclude Western State’s experts at trial,(Doc.
26). The basis of both these motions is that Western States did not timely disclose
its experts, despite Ohio’s agreement to several informal continuances ofthe
disclosure deadline.
In its first motion, Ohio seeks to exclude Western States’ untimely expert
reports on the basis that Ohio States’ delayed disclosure was not substantially
justified, nor was it harmless, making exclusion appropriate under Federal Rule of
Civil Procedure 37. (Doc. 24 at 3.) Concerning its second motion, Ohio invokes
Rule 615 to exclude witnesses from the courtroom during trial, and it also
essentially seeks an order that the Court will enforce the Rules of Evidence at trial.
{See Doc. 27 at 2(requesting an order prohibiting the admission of previously
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undisclosed evidence where the danger of unfair prejudice to Ohio outweighs any
potential probative value and limiting any expert witness’s testimony only to the
expert’s field of expertise).)
Western States objects to both motions. (Docs. 28, 29.) Western States does
not appear to object to the exclusion of all non-party witnesses under Rule 615, and
it is correct that the exclusion of undisclosed evidence and the limitation of witness
testimony are issues that can be dealt with at trial with the Rules of Evidence. {See
Doc. 29 at 2.) Thus, the only dispute on the present motions is whether Western
States’ untimely disclosure warrants exclusion of its expert reports and expert
testimony at trial. For the reasons set forth below, such exclusion is warranted.
11.
Exclusion
Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party is
barred from using information “to supply evidence on a motion, at a hearing, or at
a trial” when such information was not disclosed in accordance with Rule 26(a) or
(e). Rule 37(c)(1) provides an exception to the general rule of exclusion of
untimely disclosed material if the late-disclosing party’s failure to properly
disclose “was substantially justified or is harmless.
Western States, as the late-
disclosing party, bears the burden of proving that the failure to timely disclose was
substantially justified or harmless. Goodman v. Staples The Office Superstore,
LLC,644 F.3d 817, 827(9th Cir. 2011). “Factors relevant in determining whether
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there was ‘substantial justification for nondisclosure’ under Rule 37(c)(1) include:
(1) whether the failure to disclose was willful or merely negligent; and (2) whether
the nondisclosure resulted from factors beyond the control of the expert’s
proponent.” Rau v. State Farm Ins. Co5., 2007 WL 7652826,*8(D. Mont. Aug.
14, 2007). When assessing whether the late disclosure was harmless, expert
preclusion is appropriate where the several factors indicate the late disclosure is
prejudicial. The test requires the court to analyze 1)the public’s interest in
expeditious resolution in litigation; 2)a court’s need to manage its docket; 3)risk
of unfair prejudice to the defendants; 4)public policy favoring disposition of cases
on their merits; and 5)the availability of less drastic changes.” Keener v. United
States, 181 F.R.D. 639,641 (D. Mont. 1998).
Here, Western States cannot show that its failure to timely produce the
expert reports was substantially justified or harmless. First, Western States’ failure
to timely disclose was willful, as indicated by its multiple requests for informal
extensions of the deadline. {See Doc. 25-1 at 1; Doc. 25-3 at 1; Doc. 25-5 at 1.)
Additionally, Western States indicated that its failure to timely disclose was the
result of“the inability of the intended liability expert to timely complete the
report,”(Doc. 28 at 2), but the correspondence attached to Ohio’s first motion
shows that Ohio agreed to multiple informal extensions that ultimately resulted in
almost two-months’ worth of extra time, and it did not agree to the final request for
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an extension due to its client’s wishes. (See Docs. 25-1 through 25-7.) Western
States offers no explanation of why it could not engage a different expert when it
became clear that such significant extensions were necessary; indeed, it is
interesting that Western States filed its disclosures a day after the Court denied its
request for an extension,(Doc. 22);(see also Doc. 24 at 3).
Further, contrary to Western States’ argument, the untimely disclosure here
was not harmless. The public has an interest in the expeditious resolution of the
litigation, and Western States avers that no deadlines were impacted by its failure
to meet the expert disclosure deadlines. (Doc. 24 at 4, 8.) But the very reason
underlying the current motions is the fact that Western States missed the deadline
as set forth in the Scheduling Order and as informally agreed to by the parties.
Rule 16 of the Federal Rules of Civil Procedure establishes that the purpose ofthe
pretrial conference and scheduling order is to “expedit[e] disposition ofthe
action. By missing the original deadline and the subsequent, informal deadlines.
Western States has frustrated that purpose. See Keener, 181 F.R.D. at 642
(“Requiring the parties to comply with the Rules of Civil Procedure and with the
court’s scheduling order promotes [expeditious resolution] by eliminating the need
for continuances.”). Relatedly, the Court has significant interest in managing its
docket. As the Scheduling Order made clear, the Court is not interested in
refereeing discovery disputes, and the Scheduling Order warned that the parties
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were free to stipulate to extensions—which the parties did—but that formal
continuances would not be granted absent compelling reasons. (Doc. 18 at ^ 1.)
Western States has offered no compelling reasons here. And,the Court’s need to
manage its docket is arguably more important than ever as COVID-19-related
issues have prompted parties to stretch cases beyond their usual timeline. Finally,
while public policy favors disposition of cases on their merits, that interest is
weighed against the public’s interest in expeditious litigation and the Court’s need
to manage its own docket; here, the latter interests outweigh the former.
111.
Conclusion
Because Western States has not shown its late disclosures to be substantially
justified or harmless,
IT IS ORDERED that Ohio’s motion to exclude Western States’ experts,
(Doc. 23), is GRANTED.
IT IS FURTHER ORDERED that Ohio’s motion in limine to exclude
Western States’ experts,(Doc. 26), is GRANTED IN PART and DENIED IN
PART. It is GRANTED to the extent it invokes Rule 615 to exclude all non-party
witnesses from the courtroom and to the extent it seeks to exclude the testimony of
Western States’ experts. It is DENIED in all other respects as the Court is bound
by the Federal Rules of Evidence and Ohio’s requests are superfluous.
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DATED this
day of September, 2021.
ona
. MofToV, District Judge
United States Dismct Court
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