Leffel v. Village of Casstown

Filing 26

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE PLAINTIFF'S EXPERT DISCLOSURE AND REPORTS OR, ALTERNATIVELY, MOTION IN LIMINE TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES 21 . Signed by Judge Thomas M. Rose on 4-20-2018. (de)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
THOMAS E. LEFFEL,

:
Case No. 3:17-cv-79
:
Plaintiff,
:
Judge Thomas M. Rose
:
v.
:
:
VILLAGE OF CASSTOWN,
:
:
Defendant.
:
______________________________________________________________________________
ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO STRIKE PLAINTIFF’S EXPERT DISCLOSURE AND REPORTS
OR, ALTERNATIVELY, MOTION IN LIMINE TO PRECLUDE TESTIMONY
OF PLAINTIFF’S EXPERT WITNESSES (DOC. 21)
______________________________________________________________________________
This case is before the Court on the Motion to Strike Plaintiff’s Expert Disclosure
and Reports or, alternatively, Motion in Limine to Preclude Testimony or Plaintiff’s
Expert Witnesses (hereinafter, the “Motion to Strike”) (Doc. 21) filed by Defendant
Village of Casstown (“Defendant”). Defendant moved to strike the disclosures and
reports or preclude the testimony of three experts designated by Plaintiff Thomas E.
Leffel (“Plaintiff”): Michael Cozatt, Carlo McGinnis, and Carol Collins. In response to
the Motion to Strike, Plaintiff supplemented its disclosures regarding Cozatt and
McGinnis and withdrew his designation of Collins. (Doc. 22.) In reply, Defendant
withdrew its Motion to Strike as to Cozatt. (Doc. 24 at 1, n.1.) The only remaining issue
is therefore whether the Court should strike McGinnis’ report and/or exclude his
testimony.

I.

BACKGROUND

In its Preliminary Pretrial Conference Order, the Court set deadlines of
September 15, 2017 and November 30, 2017, respectively, for Plaintiff’s disclosure of
primary and rebuttal expert witnesses “and to provide a copy of the expert’s report.”
(Doc. 8.)

On or about September 15, 2017, Plaintiff identified his primary expert

witnesses as Cozatt and McGinnis and provided copies of their respective reports.
(Docs. 21-1, 21-2, 21-3.)
Defendant argues that Plaintiff failed to provide a “detailed and complete”
report for McGinnis, as well as his qualifications, information about his prior testimony,
a statement regarding his compensation arrangement, and the facts, data and exhibits
that he will use or that support his opinions. (Doc. 21 at 4, quoting U.S. ex rel. Tennessee
Valley Auth. v. 1.72 Acres of Land In Tennessee, 821 F.3d 742, 751 (6th Cir. 2016) and citing
Fed. R. Civ. P. 26(a)(2)(B).) Defendant further argues that, after service of the Motion to
Strike, Plaintiff provided additional opinions for Mr. McGinnis in a “supplemental”
expert report that are not permitted under Federal Rule of Civil Procedure 26(e).
II.

ANALYSIS

Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity
of any expert witness it may use at trial. Rule 26(a)(2)(B) mandates that certain expert
disclosures must be accompanied by a written report:
Unless otherwise stipulated or ordered by the court, this disclosure must
be accompanied by a written report—prepared and signed by the
witness—if the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must contain:

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(i) a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). Under Federal Rule of Civil Procedure 26(e)(2), a
party has a duty to supplement an expert report, which “extends both to information
included in the report and to information given during the expert’s deposition.” Fed. R.
Civ. P. 26(e)(2). Any additions or changes “must be disclosed by the time the party’s
pretrial disclosures under Rule 26(a)(3) are due.” Id.
If a party fails to make the above disclosures, there can be consequences. Federal
Rule of Civil Procedure 37(c)(1) states:
If a party fails to provide information or identify a witness as 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. In addition to or
instead of this sanction, the court, on motion and after giving an
opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and

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(C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1).

The party potentially subject to sanctions has the burden to

prove harmlessness. Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th
Cir. 2003).
Plaintiff does not make a serious attempt to defend the sufficiency of his original
disclosures for McGinnis—nor should he. Plaintiff describes McGinnis’ report as “in
process” and “admittedly succinct.”

(Doc. 5.)

The entire report comprised the

following three sentences:
My review of this matter to date reveals the existence of several issues
concerning the boundaries of the subject parcel including, but not limited
to, their relationship to the right-of-way of Main Street on the west and the
right-of-way of the alley on the east. The presence of these unanswered
questions provide for the reasonable probability of litigation.
Accordingly, it is my opinion that the title to said parcel is unmarketable,
given the unsettled status of the record.
(Doc. 21-3.) The report refers to “several issues” but identifies only two—the parcel’s
relationships with (1) “the right-of-way of Main Street on the west,” and (2) “the rightof-way of the alley on the east.” (Doc. 21-3.) The report fails to explain why these two
relationships constitute “issues.” It may be inferred that the relationships give rise to
“unanswered questions” based on the conclusion that “these unanswered questions
provide the reasonable probability of litigation.” (Id.) Like the issues, the unanswered
questions are never explained, but McGinnis concludes that the parcel is therefore
unmarketable. Thus, the report falls far short of meeting the requirements of Rule
26(a)(2)(B)(i) and (ii), which require “a complete statement of all opinions,” the “basis

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and reasons” for those opinions, and “the facts or data considered by the witness in
forming them.”
Notwithstanding the glaring deficiency of McGinnis’ report, Plaintiff argues that
his failure to comply with Rule 26(a)(2)(B) was harmless. Plaintiff provides a variety of
reasons why his failure should be excused—including that Defendant made no attempt
to meet and confer about Plaintiff’s expert disclosures before bringing the Motion to
Strike. Indeed, if Defendant had let Plaintiff know that it was not satisfied with his
expert disclosures, a lot of briefing might have been avoided. On the other hand, it is
Plaintiff’s responsibility to meet the Court’s deadlines for expert disclosures. He is not
entitled to shirk those deadlines in reliance on the meet-and-confer process to work out
the deficiencies in his disclosures. In any event, the Court now considers whether
Plaintiff has carried his burden of showing his non-compliance with Rule 26(a)(2)(B)
was harmless.
Plaintiff first argues that he timely produced all of the documents that McGinnis
relied upon, but was unaware that there were “some errors” in the production. Plaintiff
only became aware of those errors after Defendant brought them to his attention in the
Motion to Strike. This is the kind of inadvertent error that the Sixth Circuit has excused
under similar circumstances. See Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d
776, 783 (6th Cir. 2003) (“The fact that [plaintiff] knew of the lack of disclosures and
[defendant] apparently did not may suggest that these violations should be considered
substantially justified or harmless.”) Plaintiff further argues that McGinnis relied on

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sources mostly in the public record, such as Ohio statutes and surveys that were readily
available to both parties.
Plaintiff further notes that Defendant did not request McGinnis’s deposition
before bringing the Motion to Strike or indicate that it needed additional information in
order to avoid taking McGinnis’s deposition. (Doc. 4.) The Sixth Circuit has held that
an expert report “must be complete such that opposing counsel is not forced to depose
an expert in order to avoid an ambush at trial; and moreover the report must be
sufficiently complete so as to shorten or decrease the need for expert depositions and
thus to conserve resources.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271
(6th Cir. 2010)(citation omitted).

Although Defendant did not request McGinnis’s

deposition before moving to strike his report, it would not have any choice but to do so
if the report’s deficiencies were not corrected.

That Defendant had yet to seek

McGinnis’ deposition does not cut in Plaintiff’s favor here.
In the end, Plaintiff’s non-compliance is saved by the extended trial calendar in
this case. At the parties’ joint request, the Court recently extended the discovery cutoff
and dispositive motion deadline in this case until, respectively, May 28 and June 30,
2018. This extension resulted in a 90-day continuance of all remaining dates in the
Court’s Preliminary Pretrial Conference Order, which moved the Final Pretrial
Conference to December 13, 2018 and the first day of trial to January 14, 2019. In light
of the continuance of the trial schedule, which provides ample time for the parties to
work out remaining issues concerning McGinnis’ report, Plaintiff’s deficient disclosures
are harmless.
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Plaintiff’s delay in producing McGinnis’ report denied Defendant the
opportunity to designate a rebuttal expert. In addition, even in his second report,
McGinnis fails to identify the records that he relied upon with specificity. The Court’s
Order below addresses these issues.

See Roberts, 325 F.3d at 784 (Rule 37(c)(1)’s

“provision on sanctions explicitly states in pertinent part that ‘in lieu of this sanction [of
total exclusion], the court, on motion and after affording an opportunity to be heard,
may impose other appropriate sanctions.’”)
III.

CONCLUSION

For the reasons above, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Strike. Specifically, the Court DENIES the Motion to Strike as to
Cozatt as moot. The Court GRANTS the Motion to Strike as to Collins, who will not be
permitted to provide expert testimony in this case. The Court DENIES the Motion to
Strike as to McGinnis, insofar as the Court will not strike his expert report or preclude
him from providing expert testimony.1 However, as to McGinnis, the Court hereby
ORDERS as follows:
1. Within 7 days from entry of this Order, Plaintiff must produce to
Defendant, or identify with specificity (e.g., Bates number, if used) in
Plaintiff’s existing production, all of “the Miami County Auditor,
Recorder, Engineer, and various other County records; various related
maps and GIS data, applicable legal treatises, and related case law and
statutes; [. . .] Mr. Cozatt’s survey reviews, findings, and opinions,
including [. . .] those opinions expressed during our conference on
November 20, 2017 after review of Brumaugh Engineering &
Surveying, LLC Report, dated October 17, 2017; and [. . .] various
record drawings dated October 2011 for Main Street, Troy Pike and
The Court renders no opinion regarding McGinnis’ qualifications to testify as an expert under Federal
Rule of Evidence 702. That issue was not raised by Defendant’s Motion to Strike, and the Court has not
considered Plaintiff’s argument in this regard.
1

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Addison Pike (S.R. 55) reconstruction project,” which are referenced in
McGinnis’ second report (Doc. 22-8). McGinnis will not be permitted
to rely on any evidence, facts or data that is not so identified or
produced pursuant to this Order.
2. Defendant may, if it wishes, designate a rebuttal expert as to
McGinnis’ opinions and produce an expert report for such rebuttal
expert within 30 days of this Order.
DONE and ORDERED in Dayton, Ohio, this Friday, April 20, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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