Burger v. Excel Contractors, Inc. et al

Filing 51

ORDER Denying 34 Defendants' Motion to Strike Supplemental Expert Report. Signed by Magistrate Judge Carl W. Hoffman on 10/25/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSHUA BURGER,

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Plaintiff,
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vs.
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EXCEL CONTRACTORS, INC., et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cr-01634-APG-CWH
ORDER

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This matter is before the Court on Defendants’ Motion to Strike Supplemental Expert
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Report (#34), filed April 10, 2013; Plaintiff’s Response (#38), filed April 26, 2013; and
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Defendants’ Reply (#39), filed May 6, 2013.
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BACKGROUND
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The complaint in this matter was originally filed in state court. It was removed to this Court
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on September 18, 2013 pursuant to 28 U.S.C § 1332. Plaintiff alleges he is entitled to damages for
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injuries sustained as the result of an automobile collision. Shortly after removal, the Court adopted
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the parties proposed discovery plan and scheduling order. (#10). As a result of various extensions,
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the expert disclosure deadline expired February 19, 2013, and the rebuttal expert disclosure
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deadline expired April 22, 2013. The parties do not dispute that Plaintiff’s initial expert report was
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timely. The dispute centers around supplemental reports provided by Plaintiff’s expert on March
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19, 2013 and April 12, 2013.
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Defendants’ request an order striking the March 19, 2013 supplemental expert report
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(attached as exhibit B to Defs’ motion (#34)) of Plaintiff’s expert Dr. Hugh S. Selznick because it
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is improper under Federal Rule of Civil Procedure 26(e)(2). Defendants contend the supplemental
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report does not serve the narrow purpose of Rule 26(e) as it does not correct inaccuracies or add
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information not otherwise available at the time of the initial report. Defendants argue that all of the

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supplemental information was available prior to the initial expert report and should have been

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disclosed to and reviewed by the expert as part of the initial report. The additional information

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cited in the supplement consists of three magnetic resonance images (MRI), two of Plaintiff’s spine

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and one of Plaintiff’s brain. Two of the MRIs were taken on November 10, 2010 and the other on

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January 13, 2011. The supplement also includes analysis related to a computed tomography (CT)

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scan of Plaintiff’s spine dated March 16, 2012, and Plaintiff’s deposition testimony from December

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10, 2012. Citing the expert’s own statement in the supplement that his review of the information

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reinforced rather than changed his decision, Defendants conclude that the supplement serves no

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purpose other than to bolster the expert’s opinion.

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In response, Plaintiff argues the motion to strike should be denied because the supplement

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corresponds to the initial report, offers no new opinions, was offered in good faith, and does not

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prejudice Defendants. Plaintiff notes that the expert did, in fact, reference the MRIs and CT scan

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identified in the supplement in his initial report and “reviewed the report findings . . . and

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considered the same in reaching his conclusions.” The supplement, according to Plaintiff, captures

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the expert’s personal review of the MRIs and CT scan themselves and is nothing more than a “brief

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commentary on additional data that refers back to existing opinions and data” contained in the

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initial report. Even assuming the supplement was improper, Plaintiff contends the disclosure was

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harmless because it was made in good faith, was provided prior the rebuttal expert deadline, prior

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to the close of discovery, and prior to any expert depositions.

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In reply, Defendants reiterate their arguments in regard to the first supplement and take

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issue with a second supplemental report dated April 12, 2013. The second supplement includes

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analysis of: (1) the November 2, 2010 Henderson Police Department’s Traffic Accident Report, (2)

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the December 6, 2012 follow-up evaluation performed by one of Plaintiff’s treating physician, and

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(3) the expert’s disagreement with certain conclusions reached by the neurosurgeon who performed

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the Rule 35 examination. Defendants argue that both supplements are inappropriate because the

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supplemental information was “readily available prior to the initial disclosure deadline” and the

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supplements are designed only to reinforce prior opinions and state new ones. Defendants

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conclude by asserting that Plaintiff has not met his burden to demonstrate that the failure to comply
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with Rule 26(a) is substantially justified or harmless and, as such, should be stricken.

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DISCUSSION

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Citing Akeva LLC v. Mizuno Corp., 306, 309 (M.D.N.C. 2002), Defendants take the

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position that the Court should look to Fed. R. Civ. P. 16(f) to determine what sanctions, if any,

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should be imposed for the alleged failure to comply with Rule 26(e). The Court disagrees. In

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Akeva, each party had submitted an expert report in compliance with the court’s schedule. After

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discovering that the defendant’s expert testimony was both different from and detrimental to their

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cause, the plaintiff identified a second expert whose conclusions would serve as supplemental

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rebuttal testimony. Id. The Akeva court rejected the attempt and concluded that “the discovery

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plan did not permit a third tier of expert disclosures . . . [W]hen there is a discovery plan covering

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expert disclosures, the plan controls and not the explicit provisions of Rule 26(a)(2)(C).” Id. at

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310. Unlike Akeva, the instant case does not involve an additional or new rebuttal expert, but deals

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with an expert’s attempted supplementation of his own conclusion. The duty to supplement expert

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reports is governed by Rule 26(e)(2) and any sanctions from the failure to comply therewith stem

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from Rule 37(c), not Rule 16(f).

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Parties must make expert disclosures at the times and in the sequence that the court orders.

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Goodman v. Staples The Office Superstore, 644 F.3d 817, 827 (9th Cir. 2011) (citation omitted).

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The parties do not dispute that the expert’s initial report was timely. Even so, the disclosing party

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remains under the obligation to supplement the report if necessary. Rule 26(e) requires that “[a]

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party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure . . .

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in a timely manner if the party learns that in some material respect the disclosure is incomplete or

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incorrect of if the additional or corrective information has not otherwise been made known to the

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other parties during the discovery process or in writing. See Fed. R. Civ. P. 26(e)(1)(A). The duty

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to supplement an expert report “extends both to information included in the report and to

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information given during the expert’s deposition.” See Fed. R. Civ. P. 26(e)(2).

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“[R]ule 26(e) creates a duty to supplement, not a right.” See Luke v. Family Care and

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Urgent Medical Clinics, 323 Fed. Appx. 496, 500 (9th Cir. 2009). Supplementation under Rule

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26(e) does not create a loophole for a party to revise an initial report to its advantage. Id. “Rather,
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‘supplementation under the Rules means correcting inaccuracies, or filling the interstices of an

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incomplete report based on information that was not available at the time of the initial disclosure.”

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Id. (citing Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998)). The time for

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supplementation is not limited to the discovery period. Dayton Valley Investors v. Union Pacific R.

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Co., 2010 WL 3829219 (D. Nev.) (citation omitted); see also Advisory Comm. Notes to 1993

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Amendments (“Supplementations need not be made as each new item of information is learned but

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should be made at appropriate intervals during the discovery period, and with special promptness as

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the trial date approaches.”). In the context of supplementing an expert report, “[a]ny additions or

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changes . . . must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are

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due.” See Fed. R. Civ. P. 26(e)(2).
In determining whether a supplement under Rule 26(e) is appropriate, the court considers

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(1) whether the supplemental information correspond to a prior Rule 26(a) disclosure and, if so, (2)

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whether the supplemental information available at the time set for the initial disclosure. Carrillo v.

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B & J Andrews Enterprises, LLC, 2013 WL 420401 (D. Nev.) (citation omitted). The two

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supplements under consideration specifically identify the “new” information considered by the

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expert. In the first supplement, attached as exhibit B to Defs’ motion (#34), Plaintiff’s expert

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identifies five pieces of “new” information that he considered: three MRIs, one CT scan, and

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Plaintiff’s deposition testimony. The second supplement, attached as exhibit A to Defendants’

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reply (#39), identifies three additional pieces of “new” information: the Traffic Accident Report, a

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follow-up evaluation by a treating physician, and the Rule 35 examiner’s report.

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The Court has little difficulty concluding that the allegedly “new” information included in

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the two supplements corresponds to a prior Rule 26(a) disclosure. The initial expert report, timely

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disclosed on February 19, 2013, very clearly references each of the diagnostic studies included in

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the supplements. The expert also indicated that, though he did not have the opportunity to review

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the Traffic Accident Report, he would welcome that chance. However, all of the allegedly “new”

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information was available well before disclosure of the initial report. Consequently, the

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information included in the first supplement, though provided to the expert for the first time, was

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not “new” information. The three MRIs, CT scan, and the Traffic Accident Report existed prior to
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the lawsuit even being filed. Additionally, both Plaintiff’s deposition and the follow up

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examination referenced in the second supplement occurred over sixty (60) days prior to the expert

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disclosure deadline. Because the supplemental information was available well before the Rule

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26(a) disclosure deadline, the undersigned concludes that the supplements were improper under

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Rule 26(e).

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That, however, does not end the inquiry. As this Court noted in Carrillo, “[a] party that has

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failed to provide information required by Rule 26(a) or 26(e) ‘is not allowed to use that information

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or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

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substantially justified or harmless.’” See Carrillo, 2013 WL 420401 *3; see also Fed. R. Civ. P.

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37(c)(1). Rule 37(c) “gives teeth” to the requirements of Rule 26(e) and courts are given a

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particularly wide latitude to issue sanctions under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers

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Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (holding district court did not abuse its

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discretion in excluding testimony of defendant’s only damages expert as a sanction). Generally, the

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exclusion penalty is “self-executing” and “automatic.” Hoffman v. Constr. Protective Servs., Inc.,

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541 F.3d 1175, 1180 (9th Cir. 2008) (noting Rule 37(c)(1)’s exclusion sanction provides a strong

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inducement for disclosure of material and affirming district court’s preclusion of undisclosed

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damages evidence).

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The party facing sanctions has the burden of showing that any failure to disclose is

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substantially justified or harmless. See Yeti, 259 F.3d at 1107; see also Hicks v. Dairyland Ins. Co.,

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2009 WL 2243794 (D. Nev.) (“A literal reading of [Rule 37(c)(1)] compels the conclusion that an

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expert’s trial testimony should be automatically excluded if a party fails to strictly comply with the

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requirements of Rule 26(a)(2)(B) unless the court finds that there was a substantial justification for

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the failure to make complete disclosure, or that the failure to disclose is harmless.”). The factors

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that guide a court in determining whether a violation is substantially justified or harmless are: (1)

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prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party

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to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or wilfulness

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involved in not timely disclosing the evidence. Manneh v. Inverness Medical Innovations, Inc.,

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2010 WL 3212129 at *2 (S.D. Cal. 2010) (finding failure to disclose certain documents and witness
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not harmless where opposing party was unable to prepare its defense in time for trial). The

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exclusion of an expert’s testimony for failure to comply with the disclosure requirements is an

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available sanction even in the absence of a showing of bad faith or wilfulness. Yeti, 259 F.3d at

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1106.

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Having determined there was a violation of Rule 26(e), the Court turns to the question of

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sanctions, if any, under Rule 37(c). The Court has reviewed the factors and finds that the Rule

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26(e) failures are harmless. The failure did not result in prejudice or surprise to Defendants.

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Defendants were aware of the diagnostic studies prior to the initial report and supplements. The

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supplements were filed well before the rebuttal expert disclosure deadline of April 22, 2013,

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meaning the rebuttal expert had ample time to review and rebut the supplements. Additionally, the

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supplements were provided well before the close of discovery and expert depositions. Given the

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timing of the supplements in relation to the rebuttal expert deadline and expert depositions, any

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surprise or prejudice is easily cured and there is little in the way of risk of surprise or prejudice to

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Defendants. Discovery only recently closed, and was never delayed or extended as a result of this

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particular motion. Lastly, there is no indication of bad faith or willfulness in failing to comply with

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Rule 26(e). To the contrary, the expert specifically referenced all of the supplemental information

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in his initial report and appears to have made a concerted effort to timely disclose how the

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information affected his opinion, which, based on the undersigned’s review of the supplements, is

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very little.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendants’ Motion to Strike Supplemental Expert

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Report (#34) is denied.
DATED: October 25, 2013.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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