Vaskas et al v. Motor Truck Equipment - Pittsburgh, Inc. et al

Filing 43

MEMORANDUM re 36 MOTION to Strike The Untimely Served Expert Reports of Michael J. Kuzel and Donald Parker filed by Deanna Vaskas, Robert Vaskas Signed by Honorable A. Richard Caputo on 3/22/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT and DEANNA VASKAS,
CIVIL ACTION NO. 3:10-CV-1024
Plaintiffs,
(JUDGE CAPUTO)
v.
KENWORTH TRUCK CO. and PACCAR,
INC.,
Defendants.
MEMORANDUM
Presently before the Court is a Motion to Strike the Untimely Served Expert Reports
of Michael J. Kuzel and Donald Parker brought by Plaintiffs Robert and Deanna Vaskas.
(Doc. 36.) Plaintiffs request the Court to strike supplemental expert reports that Defendants
Kenworth Truck Company and PACCAR Inc served nearly three months after the close of
expert discovery. Because Defendants cannot show that the untimeliness of these reports
was substantially justified or harmless, Plaintiffs’ motion will be granted.
BACKGROUND
This action stems from an incident that occurred on August 21, 2007, when Plaintiff
Robert Vaskas fell while exiting a 2005 Kenworth T800 tractor (the “Kenworth tractor”)
designed and manufactured by Defendants. Plaintiffs commenced this action in the Court
of Common Pleas of Lackawanna County, Pennsylvania, on August 11, 2009, alleging
negligence, strict products liability, breach of warranty, and loss of consortium claims
against Defendants. (Doc. 1, Ex. A.) On May 12, 2010, Defendants successfully removed
the case to this Court on diversity grounds. (Doc. 1.)
This Court entered a Case Management Order on February 27, 2012 (Doc. 7) and
amended the order on April 19, 2012 (Doc. 11). The Amended Case Management Order

placed this case on the January 2013 trial list and required Plaintiffs and Defendants to
comply with the requirements of Federal Rule of Civil Procedure 26(a)(2) with respect to
expert witnesses no later than August 1, 2012 and September 1, 2012, respectively. (Id.
at ¶¶ 1, 4.) Dispositive motions as well as the disclosures required by Federal Rule of Civil
Procedure 26(a)(3) were due by August 1, 2012, supplemental expert reports were due by
October 1, 2012, and expert discovery was to be completed by October 15, 2012. (Id. at
¶¶ 2, 4–5.)
On August 1, 2012, Plaintiffs disclosed the expert report of Traci K. Campbell, P.E.,
dated May 4, 2009 (Doc. 21, Ex. 2) and Defendants moved for summary judgment (Doc.
13). On October 1, 2012, Plaintiffs received a supplemental report from Ms. Campbell,
which they served on Defendants that same day. (Doc. 24 at 5, Ex. F.) On October 30,
2012, Plaintiffs filed their Motion to Supplement (Doc. 18), which asked this Court to
consider the supplemental Campbell report in deciding Defendants’ summary judgment
motion. Defendants requested that this Court deny Plaintiffs’ motion and strike the report
or, alternatively, compel Plaintiffs to produce Ms. Campbell for deposition and grant
Defendants leave to serve supplemental expert reports. (Doc. 21at 5–12.)
On January 8, 2013, the Court granted the Motion to Supplement, as Plaintiffs were
timely in making their Rule 26(a) disclosures and supplementing them in accordance with
Rule 26(e) and the Amended Case Management Order. (Doc. 25 at 4–6.) The Court did
not grant Defendants leave to serve supplemental expert reports on Plaintiffs, but granted
in part and denied in part Defendants’ Motion for Summary Judgment. (Id. at 6–19.)
The following day, Defendants served upon Plaintiffs supplemental expert reports
from Michael J. Kuzel, P.E., CHFP and Donald Parker, who respond to the supplemental
Campbell report and note that the opinions in their initial reports remain unchanged. (Doc.
37 at 2; Doc. 39 at 3.) On February 14, 2013, Plaintiffs moved to strike the reports as

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untimely, arguing that Defendants’ failure to comply with the Amended Case Management
Order’s deadlines was neither substantially justified nor harmless.

(Doc. 37 at 3.)

Defendants respond that the reports should not be stricken, as Defendants were
substantially justified and acted in good faith in serving the reports when they did, Plaintiffs
have not been prejudiced, and allowing the reports would not disrupt the Court’s trial
schedule. (Doc. 39 at 4–6.) This motion has been fully briefed and is ripe for disposition.
DISCUSSION
A. Violation of Rules 26(a) and 26(e)
Under the Federal Rules of Civil Procedure, parties must disclose the identity of
expert witnesses who may testify at trial and accompany that disclosure with a written report
prepared by the witnesses which includes “a complete statement of all opinions the witness
will express and the basis and reasons for them; the date or other information considered
by the witnesses in forming them; any exhibits that will be used to summarize or support
them,” as well as additional information about the witness’s qualifications, prior expert
testimony, and compensation received in the relevant case. Fed. R. Civ. P. 26(a)(2)(A)–(B).
The parties must make these disclosures according to deadlines set in any case
management order or other order issued by the court. Fed. R. Civ. P. 26(a)(2)(D). Rule
26(a)(2) “imposes . . . [a] duty to disclose information regarding expert testimony in advance
of trial that opposing parties have a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.” Fed. R. Civ.
P. 26, cmt. to 1993 Amendments. Parties also have a duty to timely supplement their
expert disclosures when they are incorrect or incomplete if the additional information has
not otherwise been made known to the other parties in the case.

Fed. R. Civ. P.

26(a)(2)(E); Fed. R. Civ. P. 26(e). The duty to supplement applies to the expert’s report and
opinions given during deposition testimony. Fed. R. Civ. P. 26(e)(2). Supplemental reports

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must be disclosed by the time a party’s pre-trial disclosures are due. Id.
In this case, the Amended Case Management Order dictated that supplemental
expert reports were due no later than October 1, 2012 and that the deadline for completing
expert discovery was October 15, 2012. (Doc. 11 at ¶¶ 2, 4.) On October 1, 2012, Plaintiffs
received a supplemental report from Ms. Campbell and served it upon Defendants the same
day. (Doc. 24 at 5, Ex. F.) The supplemental reports from Messrs. Kuzel and Parker, which
respond to the supplemental Campbell report but do not alter the opinions in the initial Kuzel
and Parker reports, were not served upon Plaintiffs until January 9, 2013. (Doc. 37 at 2;
Doc. 39 at 3.) Although the Court granted Plaintiffs’ Motion to Supplement and considered
their expert’s supplemental report in deciding Defendants’ Motion for Summary Judgment,
it did not grant Defendants leave to file supplemental reports. (Doc. 25 at 6.) Accordingly,
the Court finds that Defendants failed to timely supplement their experts’ reports in
contravention of the Amended Case Management Order and Rules 26(a) and 26(e) of the
Federal Rules of Civil Procedure.
B. Appropriate Sanction
Defendants contend that sanctions under Federal Rule of Civil Procedure 37 are
inappropriate here because their untimeliness in serving their supplemental expert reports
was both substantially justified and harmless. (Doc. 39 at 5–6.) They argue that the
reports, which were served three months before the scheduled April trial date, will neither
prejudice Plaintiffs nor disrupt the orderly and efficient trial of this case. (Id.) Defendants
also state that they acted in good faith by serving the reports the day after the Court
resolved the “genuine dispute over whether the Campbell supplement would be accepted.”
(Id.) Plaintiffs respond that Defendants cannot show that they were substantially justified
in serving the reports after the deadline for expert discovery or that their untimeliness was
harmless. (Doc. 37 at 6.) Plaintiffs contend that they have been prejudiced by Defendants’

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supplemental reports and cannot correct this prejudice. (Id. at 7.)
The Federal Rules state that a party who fails to comply with the requirements of
Rule 26(a) or 26(e) “is not allowed to use that information or witness to supply evidence .
. . at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). The non-producing party has the “burden of proving substantial justification or that
its failure to produce was harmless.” Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D.
Pa. 2002). “‘Substantial justification’ for the failure to make a required disclosure has been
regarded as ‘justification to a degree that could satisfy a reasonable person that parties
could differ as to whether the party was required to comply with the disclosure request.’”
Id. (quoting United States v. Dentsply Intern., Inc., No. Civ. A. 99–5, 2000 WL 654378, at
*7 (D. Del. May 10, 2000). “The test of substantial justification is satisfied if ‘there exists a
genuine dispute concerning compliance.’” Id. at 175–76 (quoting Henrietta D. v. Giuliani,
No. 95–CV–0641, 2001 WL 1602114, at *5 (E.D.N.Y. Dec. 11, 2001)). Failure to comply
with Rule 26(a) is harmless “if it involves an honest mistake, coupled with sufficient
knowledge by the other party of the material that has not been produced.” Klatch–Maynard
v. Sugarloaf Tp., No. 06-CV-0845, 2011 WL 2006424, at *2 (M.D. Pa. May 23, 2011).
The Third Circuit has held that “even under Rule 37, the imposition of sanctions for
abuse of discovery . . . is a matter within the discretion of the trial court.” Newman v. GHS
Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir. 1995) (citations and quotations omitted). It has
cautioned that excluding evidence is an “extreme sanction” for a violation of a discovery
order. In re TMI Litig., 193 F.3d 613, 721 (3d Cir. 1999) (citation and quotations omitted).
The Third Circuit instructs district courts to consider the following factors in exercising its
discretion to exclude evidence: “(1) the importance of the information withheld; (2) the
prejudice or surprise to the party against whom the evidence is offered; (3) the likelihood
of disruption of the trial; (4) the possibility of curing the prejudice; (5) the explanation for the

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failure to disclose; and (6) the presence of bad faith or willfulness in not disclosing the
evidence . . .” B. Braun Melsungen AG v. Terumo Med. Corp., No. 09-347, 2010 WL
4438041, at *9 (D. Del. Oct. 28, 2010) (citing Konstantopoulos v. Westvaco Corp., 112 F.3d
710, 718 (3d Cir. 1997)).
Application of these factors to the facts of the instant case demonstrates that
exclusion is an appropriate sanction. First, the information in Defendants’ supplemental
expert reports is important, especially concerning the issue of whether Defendants
defectively manufactured the Kenworth tractor. Second, Defendants’ failure to supplement
prior to the close of expert discovery prejudiced Plaintiffs, who were deprived of the
opportunity to depose Messrs. Kuzel and Parker about their supplemental reports. With
respect to the third and fourth factors, the prejudice suffered by Plaintiffs cannot be
ameliorated because this case is on this Court’s April 2013 trial list. See Ciocca v. BJ’s
Wholesale Club, Inc., No. 04-CV-5605, 2011 WL 3563560, at *3 (E.D. Pa. Aug. 12, 2011)
(noting that when a “court excludes expert testimony on grounds of untimeliness, it is almost
always in the face of a fast approaching trial date.”). Next, the Court does not find
Defendants’ explanation for their failure to disclose to be persuasive. Defendants claim that
they had reasonable grounds to believe that the Court would exclude the addendum to the
Campbell Report and were therefore uncertain as to whether they needed to rebut Plaintiffs’
supplemental report. However, the Court does not find a dispute over the admissibility of
a supplemental expert report filed prior to the deadline for such reports to be “genuine.”
See Fed. R. Civ. P. 26, cmt. to 1993 Amendments (the Rule’s duty to supplement “requires
disclosure of any material changes made in the opinions of an expert from whom a report
is required . . . . “). The Court also notes that regardless of whether such a dispute was
genuine, Defendants were not granted leave to serve supplemental expert reports on
Plaintiffs but did so anyway. Such conduct leads the Court to find that Defendants’ failure

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to observe the deadlines in the Amended Case Management Order was willful.
Having considered these factors, the Court finds that Defendants have failed to show
that they were substantially justified in serving their supplemental expert reports three
months after the close of expert discovery in this matter or that such conduct was harmless.
Accordingly, Plaintiffs’ motion will be granted and the supplemental expert reports of
Messrs. Kuzel and Parker will be stricken.
CONCLUSION
Because Defendants cannot establish that the untimeliness of their supplemental
expert reports was substantially justified or harmless, Plaintiffs’ Motion to Strike the
Untimely Served Expert Reports of Michael J. Kuzel and Donald Parker (Doc. 36) will be
granted.
An appropriate order follows.

March 22, 2013
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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