Community Association Underwriters of America, Inc. v. Rhodes Development Group, Inc. et al

Filing 139

MEMORANDUM AND ORDER: 1. Dfts oral motion to strike Pltfs July 4 Report isDENIED;2. The remaining case management ddls, including trial, are STAYED;3. By 7/19/13, the parties shall file a status report with the court with a proposed ddl for Dfts resp onse to Pltfs July 4 Report. Upon the courts approval of that ddl, the court will set the remaining pre-trial ddls and set a trial date.4. The parties shall also indicate in the status report their intention tostand on, withdraw, or amend any of the currently pending motions in limine in light of this order. Signed by Honorable Sylvia H. Rambo on 07/11/13. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COMMUNITY ASSOCIATION
UNDERWRITERS OF AMERICA,
INC. A/S/O PARK VIEW AT
WAVERLY, A CONDOMINIUM
C/O PMI MANAGEMENT,

:
:
:
:
:
:
Plaintiff
:
:
v.
:
:
RHODES DEVELOPMENT GROUP, :
INC. A/K/A RHODES
:
DEVELOPMENT CORP. A/KA/ R&L :
CONSTRUCTION COMPANY,
:
ADAMS DRYWALL, and PEDRO
:
YAHUITL QUINTERO,
:
:
:
Defendants
:

CIVIL NO. 1:09-CV-0257

Judge Sylvia H. Rambo

MEMORANDUM
This case involves a subrogation claim filed by Community Association
Underwriters of America, Inc. (“CAUA”), wherein CAUA seeks to recover
payments made to Park View at Waverly, a Condominium (“Park View”) as a result
of a fire that occurred on March 4, 2008. Presently before the court is a dispute that
arose as a result of Plaintiff’s untimely submission of an expert report. During a
conference call with the parties, Defendants moved the court to deem the expert
report untimely and inadmissible. The court will interpret Defendants’ oral request
as a motion to strike the report as untimely. For the following reasons, the court will
deny the motion.
I.

Background
The original deadline for submission of Plaintiff’s expert reports was

July 30, 2010. (See Doc. 31.) On July 1, 2010, the court granted a joint motion to

extend case management deadlines, establishing September 15, 2010, as the deadline
for submission of Plaintiff’s expert reports. (Doc. 41.) In accordance with that
order, Plaintiff submitted two timely reports, one authored by Michael E. Wald and
Raymond Sofield, dated September 7, 2010 (“Wald/Sofield Report”), and one
authored by Bradley A. Schriver, dated September 14, 2010 (“Schriver Report”).
The Wald/Sofield Report eliminates electrical malfunctions as a possible source of
the fire, and concludes that the improper use of a propane heater was the likely
source of ignition. The Schriver report comes to the same conclusion. Specifically,
the Wald/Sofield report states:
The evidence is thus quite clear that there is no possibility
that this fire was caused by any electrical malfunctions or
failures. None of the wiring within the walls or electrical
devices anywhere near the origin area of this fire were even
energized and thus could not cause a fire under any
circumstances. The gas-fired portable heater remains the
only identified source of ignition for this fire. Improper
use of a portable heater is a well known and well
recognized cause of fires in construction settings.
Likewise, the Schriver report concludes:
[B]ased on the scene examination and information learned
during the course of the investigation, it is the opinion of
this investigator that the cause of the fire was attributed to
the improper use of the propane-fired portable heater that
was left energized overnight for the curing of drywall on
the first floor level of 417 Parkview Drive.
Following the expiration of Plaintiff’s expert report deadline in
September 2010, numerous summary judgment motions and briefs were field. (See
Docs. 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 67, 68, 69, 73, & 74). On
April 13, 2011, the court granted Plaintiff’s motion for leave to file an amended
complaint. (Doc. 89.) That same day, Plaintiff filed an amended complaint that set
forth two counts, both sounding in negligence. (Doc. 90.) The court once again
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entertained summary judgment motions and briefing. (See Docs. 95, 96, 98, 101, &
103.) On July 29, 2011, the court granted Defendants’ motion for summary
judgment based upon a waiver of subrogation and entered judgment in favor of
Defendants. (Docs. 104 & 105.) Plaintiff appealed, and on July 12, 2012, the Third
Circuit Court of Appeals vacated this court’s grant of summary judgment and
remanded the case for further proceedings. (Doc. 109.) On remand, Defendants
indicated they wished the court to proceed with the previously filed motions for
summary judgment based on a deficient expert report and spoliation of the fire scene.
(Docs. 112, 113 & 115.) On March 5, 2013, the court denied those motions, and set
the remaining case management deadlines. (Docs. 117 & 118.) Any deadlines that
previously expired, including expert discovery and report deadlines, were not
extended. At present, the case management deadlines are as follows:
Motions in Limine & Supporting Briefs
Motions in Limine Response

July 8, 2013

July 18, 2013

Motions in Limine Reply

July 25, 2013

Pretrial submissions

August 8, 2013

Pretrial conference

August 16, 2013

Jury selection/Trial

September 9, 2013

(Docs. 121, 122 & 124.)
Plaintiff, on July 4, 2013, submitted to Defendants another expert report
authored by Michael Wald (“July 4 Report” or “Report”). This Report was
submitted just over two months before trial, and almost three years after the
expiration of Plaintiff’s expert report deadline. Consistent with the Sofield/Wald and
Schriver Reports, the three-page Report concludes that “this fire was caused by the
3

careless and improper use of the subject heater in violation of accepted Industry
Codes and Standards.” However, unlike the prior reports, the July 4 Report
expounds on this conclusion, citing violations of various regulations and codes,
including Pennsylvania Fire Code § 1403.6, OSHA regulation § 1926.154(b)(3), and
National Fuel Gas Code 54, as evidence of improper use of the subject heater. The
report also cites to safety instructions in the Owner’s Manual, and explains precisely
how, in Wald’s opinion, Defendants were noncompliant with those instructions.
II.

Discussion
Defendants have requested that the court strike the July 4 Report as

untimely. Federal Rule of Civil Procedure 37 allows the court to strike a
supplemental expert report as untimely if the report failed to comport with a
discovery order, or if the report was not appropriately supplemented in accordance
with Federal Rule of Civil Procedure 26, which requires a party to supplement
incomplete expert reports by the time a party’s pre-trial disclosures are due. Fed. R.
Civ. P. 37 (b & c); Fed. R. Civ. P. 26 (e)(2); see also Fed. R. Civ. P. 16(f). Here,
there is no question that the Report is in violation of this court’s July 1, 2010 case
management order establishing September 15, 2010, as the deadline for disclosure of
Plaintiff’s expert reports. On the conference call, Plaintiff’s counsel admitted that
the report is untimely, but nevertheless opposed Defendants’ motion to strike,
arguing that the report is merely supplemental to the Sofield/Wald and Schriver
Reports, and the amount of prejudice to be incurred by Defendants is minimal.
The determination of whether to exclude evidence is committed to the
court’s discretion. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir.
4

1994). However, the Third Circuit has noted that “the exclusion of critical evidence
[for violating a discovery order] is an ‘extreme’ sanction, not normally to be imposed
absent a showing of willful deception or ‘flagrant disregard’ of a court order by the
proponent of the evidence.’” Id. at 791-92 (quoting Meyers v. Pennypack Woods
Home Ownership Ass’n, 559 F.2d 894 (3d Cir. 1977)); see also In re TMI Litig., 193
F.3d 613, 721 (3d Cir. 1999). The Third Circuit has identified several factors for the
court to consider in deciding whether to exclude evidence, including: (1) the
importance of the evidence in question; (2) the prejudice or surprise to the party
against whom the evidence is offered; (3) the possibility of curing the prejudice; (4)
the likelihood of disruption of trial; (5) the explanation of the failure to disclose; and
(6) the presence of bad faith or willfulness in not disclosing the evidence. See
Meyers, 559 F.2d at 904-05; Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718
(3d Cir. 1997); see also Vaskas v. Kenworth Truck Co., 2013 U.S. Dist. LEXIS
41065, *9 (M.D. Pa. Mar. 25, 2013).
Upon consideration of these factors, the court will deny Defendants’
motion to strike. Initially, the court notes that disclosure of the Report at this late
juncture constitutes a blatant violation of the court’s case management order. The
court must emphasize that pretrial orders play an important role in controlling the
course of litigation, and adherence to those orders is essential to the orderly
disposition of cases. Nor is the court fully satisfied with Plaintiff’s counsel’s
explanation that, following the expiration of the Plaintiff’s expert report deadlines,
the parties’ attention was placed on summary judgment. While it is true that
numerous summary judgment motions were filed at that time, that is no excuse for
missing deadlines, failing to request reasonable extensions, or failing to submit
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complete expert reports. Moreover, by accepting the July 4 Report, the court will
almost certainly need to continue the trial date, currently scheduled to commence in
less than two months. These factors favor exclusion. However, this court has long
adhered to the principle that litigants should not be held responsible for their
counsel’s disregard of orders in instances where the exclusion of evidence would
produce an “unduly harsh” outcome. See In re TMI Litig., 922 F. Supp. 997, 1007
(M.D. Pa. 1996), aff’d in relevant part by, 193 F.3d 613, 721 (3d Cir. 1999).
Moreover, as explained below, the remaining factors militate against exclusion.
As to the first factor, the court finds that the July 4 Report is important
to Plaintiff’s case. Plaintiff’s sole cause of action against Defendants is negligence.
As such, Plaintiff will be tasked with proving causation by showing that Defendants’
negligent use of the propane heater caused the fire. Although both the Wald/Sofield
and Schriver Reports conclude that Defendants’ improper use of the propane heater
ignited the fire, neither report explains in any detail precisely how the heater was
improperly utilized. An expert report must contain “a complete statement of all
opinions the expert will express,” Fed. R. Civ. P. 26 (a)(2)(B)(i), although courts
generally do not require verbatim consistency between an expert’s testimony and an
expert report, see, e.g., nCUBE Corp. v. SeaChange Int’l, Inc., 809 F. Supp. 2d 337,
347 (D. Del. 2011). Accordingly, with the exception of reasonable elaboration, any
expert will be precluded from testifying beyond the scope of his or her expert report.
Exclusion of the July 4 Report, therefore, will likely preclude testimony from Wald
as to the details regarding Defendants’ alleged misuse of the heater, a limitation
which may significantly affect Plaintiff’s ability to prove causation.

6

The court finds that accepting the Report at this juncture will result in,
at most, only minimal prejudice to Defendants. The July 4 Report does not contain
new opinions not disclosed in prior reports; rather, the Report merely elaborates
upon the conclusion previously stated in prior reports. Although the Report contains
new information regarding the alleged improper use of the heater, the court finds that
the new information is neither copious nor technical. Indeed, the Report consists of
only three pages, and only one page is dedicated to “discussion” and “conclusion.”
The Report does not attach any exhibits or appendices. Significantly, to the extent
Defendants will be prejudiced by the belated disclosure of the Report, such prejudice
can be cured by a reasonable extension of time to respond. While this will likely
result in a short continuance of the trial date, the parties will not suffer any
appreciable prejudice as a result of that delay. The procedural history of this case is
lengthy, and rushing to trial at this point at the expense of potentially critical
evidence would be a disservice to the efforts of counsel and the court. Moreover,
prejudice can be further minimized by permitting Defendants to depose Wald. On
the conference call, counsel represented to the court that Wald would be available to
be deposed on July 19, 2013. The court will permit that deposition, and will allow
Defendants the opportunity to submit a supplemental response to the July 4 Report.
The court does not believe that any other deposition discovery is necessary to
prepare a response to the July 4 Report.
Finally, notwithstanding the court’s displeasure with the untimely
production of the Report, and dissatisfaction with Plaintiff’s explanation given in
support thereof, the court does not detect any bad faith on the part of Plaintiff.
Indeed, Plaintiff readily admits that the Report is untimely, but nevertheless seeks the
7

court’s indulgence in light of the above considerations. The court finds that, at
worst, Plaintiff’s counsel was neglectful in assuring that the previously submitted
reports contained a complete statement of the opinions of the expert, as required
under the Federal Rules of Civil Procedure.
III.

Conclusion
In short, the court will deny Defendants’ motion to strike the July 4

Report based on the application of the above factors. The parties are instructed to
confer and, if practicable, provide the court with a joint proposed deadline for
Defendants’ submission of a supplemental response to the July 4 Report, which may
include a supplemental expert report or a motion in limine. Any proposed deadline
shall account for the least amount of time necessary to respond to the July 4 Report,
so that this case may proceed in a timely manner. An appropriate order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: July 11, 2013.

8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COMMUNITY ASSOCIATION
UNDERWRITERS OF AMERICA,
INC. A/S/O PARK VIEW AT
WAVERLY, A CONDOMINIUM
C/O PMI MANAGEMENT,

:
:
:
:
:
:
Plaintiff
:
:
v.
:
:
RHODES DEVELOPMENT GROUP, :
INC. A/K/A RHODES
:
DEVELOPMENT CORP. A/KA/ R&L :
CONSTRUCTION COMPANY,
:
ADAMS DRYWALL, and PEDRO
:
YAHUITL QUINTERO,
:
:
:
Defendants
:
:

CIVIL NO. 1:09-CV-0257

Judge Sylvia H. Rambo

ORDER
In accordance with the accompanying memorandum, it is HEREBY
ORDERED as follows:
1. Defendants’ oral motion to strike Plaintiff’s July 4 Report is
DENIED;
2. The remaining case management deadlines, including trial, are
STAYED;
3. By July 19, 2013, the parties shall file a status report with the court
with a proposed deadline for Defendants’ response to Plaintiff’s July 4 Report.
Upon the court’s approval of that deadline, the court will set the remaining pre-trial
deadlines and set a trial date.

4. The parties shall also indicate in the status report their intention to
stand on, withdraw, or amend any of the currently pending motions in limine in light
of this order.
s/Sylvia H. Rambo
United States District Judge
Dated: July 11, 2013.