Santiago-Lampon v. Real Legacy Assurance Co. et al

Filing 80

OPINION AND ORDER re 56 MOTION to Strike defendant's expert's report for being untimely filed by Reinaldo Santiago-Lampon, 60 MOTION to Strike Defendant's Expert Report filed by Autoridad de Carreteras y Tran sportacion, 66 Objection to Plaintiff's and PRHTA Request to Strike Defendant's Expert Report filed by Real Legacy Assurance Co., The Shell Company Ltd. Puerto Rico. Signed by US Magistrate Judge Bruce J. McGiverin on 7/1/2013. (jm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
REINALDO SANTIAGO LAMPÓN,
Plaintiff,
v.
REAL LEGACY ASSURANCE CO., et al.,
Defendants, Third-Party Plaintiffs,

Civil No. 12-1314 (JAG/BJM)

v.
AUTORIDAD DE CARRETERAS Y
TRANSPORTACIÓN, et al.,
Third-Party Defendants.
OPINION AND ORDER
Before the court is Reinaldo Santiago-Lampón’s (“Santiago” or “plaintiff”)
motion to strike Real Legacy Assurance Co.’s and The Shell Company Ltd. Puerto Rico’s
(collectively “defendants”) experts’ reports as untimely. Docket No. 56. Co-defendant
and third-party defendant Autoridad de Carreteras y Transportación de Puerto Rico
(“PRHTA”) also filed a motion to strike as untimely the accident reconstruction report of
one of the experts, and joined plaintiff’s motion. Docket No. 60. Defendants oppose,
asking the reports be admitted, or that if the motion is granted, that plaintiff’s experts’
reports be struck as well. Docket No. 66. The presiding judge referred the motions,
defendants’ opposition, and Santiago and PRHTA’s respective replies (Docket Nos. 73,
75) to me for disposition. Docket No. 74. The motions to strike are GRANTED.
BACKGROUND
On July 6, 2012, trial was set for July 15, 2013. Docket No. 8. On September 6,
2012, the court granted plaintiff until October 15, 2012 to serve any experts’ reports.
Docket No. 31. Plaintiff produced their experts’ reports on October 16, 2012. Docket
No. 56 at 2, ¶ 7. Defendants had until November 30, 2012 to do the same. Docket No.

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31. Discovery was originally set to conclude by February 28, 2013, with dispositive
motions to be filed by March 29, 2013. Id. But, granting plaintiff’s petition due to a fire
that destroyed counsel’s office, the court extended the deadline to conclude discovery by
April 1, 2013, with dispositive motions due by May 1, 2013. Docket No. 54. Defendants
produced four experts’ reports on April 29, 2013. Docket Nos. 56 at 1, ¶ 4; 60 at 2, ¶ 3.1
DISCUSSION
Santiago and PRHTA argue that the defendants’ five-month delay in disclosing
the experts’ reports is prejudicial to them. Docket Nos. 56 at 2, ¶ 6; 60 at 2, ¶ 4.
Specifically, they argue that the short time between the disclosure and the trial will
preclude them from deposing the experts, procuring their own rebuttal expert witnesses,
and will hinder their trial preparations by having to focus on this matter. Docket Nos. 56
at 2, ¶ 6; 60 at 2, ¶ 4. Parties are required to identify their expert witnesses and, unless
the court specifies otherwise, a written report must accompany the disclosure. Fed. R.
Civ. P. 26(a)(2)(A)-(B). The parties must make these disclosures at the times and in the
sequence that the court orders. R. 26(a)(2)(D). Failure to comply with Rule 26(a)
disclosures results in the party being unable to use the information or witness, unless the
failure was justified or harmless. R. 37(c)(1). When deciding whether to exclude expert
witness reports for failure to disclose, the court must review (1) the history of the
litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned
party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability
to overcome the late disclosure’s adverse effects-e.g., the surprise and prejudice
associated with the late disclosure; and (5) the late disclosure’s impact on the district
court’s docket. Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009)

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Dr. José López’s independent medical evaluation was dated November 1, 2012. Docket No. 73-3. Mr.
Antonio Rosado’s loss of income report and Dr. José Franceschini Carlo’s forensic psychiatric report were dated
November 30, 2012. Docket Nos. 73-1, 73-2.

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(citing Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003)). I analyze each of these factors
in turn.
I.

History of the Litigation
Defendants have demonstrated a pattern of delays.

The court ordered the

defendants to produce their expert witness reports by November 30, 2012. Docket No.
31. Defendants produced the expert reports on April 29, 2013. Docket Nos. 56 at 1, ¶ 4;
60 at 2, ¶ 3. Defendants do not deny that the experts’ reports were submitted late, but
contend that a series of procedural changes altered the discovery timetable. Docket No.
66 at 2-3. The parties may change the discovery timetable that they had originally shared
with the court, but they may not stipulate any discovery procedure that would interfere
with the time set by the court for completing discovery. Fed. R. Civ. P. 29(b).
Defendants state that on November 16, 2012, the parties agreed to postpone
depositions of fact witnesses until the week of December 17, 2012 and that defendants
would turn in the experts’ reports by December 31, 2012.

Docket No. 66 at 2-3.

Santiago does not confirm or deny agreeing to receive defendants’ experts’ reports by
December 31, 2012. See Docket No. 73 at 3. But, he argues that agreeing to an
extension beyond the discovery deadline of April 1, 2013 would be absurd as it would
leave him no time to depose defendants’ experts. Id. at 3-4. PRHTA argues that it was
not a part of this conversation and that it would have objected to any deadline for
submission beyond November 30, 2012. Docket No. 75 at 3. Assuming, arguendo, the
parties had agreed to a December 31, 2012 deadline, defendants did not comply the
experts’ reports submission.
Even in the absence of a court order, defendants’ experts’ report would be in
violation of Rule 26. Expert testimony must be disclosed at least ninety days before the
date set for trial. Fed. R. Civ. P. 26(a)(2)(D)(i). April 29, 2012 is only seventy-seven
days before the trial date of July 15, 2013. Defendants claim that the court’s December
11, 2012 order granting plaintiff’s motion to delay the discovery deadline effectively

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extended the deadline for all discovery matters to April 1, 2013, including the experts’
reports. Docket No. 66 at 3. Because the experts’ reports deadlines had passed when the
court granted plaintiff’s motion and they were not mentioned in the motion, defendants’
assumption seems misleading. See Docket Nos. 53, 54. Defendants failed to file a
motion for an extension of time for their experts’ reports. Unless approved by the court,
any such extension beyond the discovery deadline, whether on agreement by the parties
or not, would have been a violation of Rule 29(b). Assuming the April 1, 2013 extension
applied to the experts’ reports, the defendants’ reports would still have been submitted
twenty-eight days late and only three days prior to the deadline for dispositive motions.
Assuming a court order was not in effect, the defendants’ reports would have been
thirteen days late. This factor weights against defendants as it reveals a pattern of
unjustified delays.
II.

Defendants’ Need for the Reports
Defendants did not articulate their need for the untimely experts’ reports. See

Docket No. 66. A party’s need for the expert testimony cuts in their favor. SantiagoDíaz v. Laboratorio Clínico Y De Referencia Del Este And Sara López, M.D., 456 F.3d
272, 277 (1st Cir. 2006). Here, defendants not only fail to articulate their need for the
additional information in the late submission, but also failed to list the reports submitted.
See Docket No. 66.

Defendants mention that their accident reconstruction expert’s

opinion “to some extent overlaps with” the plaintiff’s expert’s, and that their damages
reports “do not contradict the damages suffered by the plaintiff, but only the extent of the
damages claimed.” Id. at 9. Defendants discuss the damages reports, as a group. See id.
It is plaintiff’s motion to strike where the court receives notice that the damages reports
include an orthopedist’s, a psychiatrist’s, and an economist’s report. Docket No. 56 at 2,
¶ 4. This makes it more difficult to determine the defendants’ need for the reports

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submitted as they equate the reports to information already available and failed to
enumerate or in any way state their need for the reports.
To provide some perspective, in Santiago-Díaz, a medical malpractice suit, the
doctor that discovered the defendants’ malpractice was not allowed to testify because the
expert’s report did not comply with the Rule 26(a)(2)(B) requirements. See SantiagoDíaz, 274-275. There, the First Circuit found that the need for the expert was established
and certainly weighed in the plaintiff’s favor as part of the five-factor analysis.2 Here,
the need for the experts’ reports is not so evident, even more so in light of defendants’
statements that the opposing parties’ witnesses have provided similar testimony. While
the court may surmise the potential need for these reports in the present litigation, it is the
litigants’ obligation to give the court the raw materials needed to conduct an analysis of
their claims, or they risk losing as a consequence. See Velázquez Rodríguez v. Mun’y of
San Juan, 659 F.3d 168, 175 (1st Cir. 2001) (internal citations omitted). Even though the
necessity factor is usually weighed in favor of the party submitting the information,
defendants’ failure to address it achieves the opposite result.
III.

Defendants’ Justification
Defendants do not deny that the experts’ reports were submitted late. Docket No.

66 at 3. Failing to comply with the court’s order of when the parties must disclose their
expert witnesses violates Fed. R. Civ. P. 26(a)(2)(D). If the violation is not substantially
justified or harmless, the submitting party cannot use the expert witness at trial, at a
hearing, or on a motion.

Ortiz-López v. Sociedad Española de Auxilio Mutuo y

Beneficiencia, 248 F.3d 29, 33 (1st Cir. 2001) (citing Fed.R.Civ.P. 37(c)(1)). Defendants
argue their delay in submitting the accident reconstruction report was justified and
harmless, and their delay in submitting the three damages reports was harmless mistake.

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The First Circuit found that the district court did not abuse its discretion in excluding the witness’
testimony, even though fatal for the plaintiff’s case, because all remaining factors cut against her. Santiago-Díaz, 277278.

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Docket Nos. 66 at 7, 10. I stop to address the defendants’ justification for the late
accident report here, and then discuss the lack of prejudice of the harmless mistake under
opposing parties’ ability to overcome it.
Defendants argue that the parties had agreed that expert witnesses could complete
their reports after all facts witnesses had been deposed, and the last facts witness was
deposed on April 2, 2013.

Docket No. 66 at 8.

While the parties may stipulate

procedures governing discovery, a stipulation that would interfere with the time set for
completing discovery must have court approval. See Fed. R. Civ. P. 29(b). Here, the
parties’ alleged agreement is irrelevant because it would have interfered with the April 1,
2013 discovery completion deadline. Defendants claim that, without the information
provided by the fact witnesses, the accident reconstruction expert’s report would have
been “a shot in the dark.” Docket No. 66 at 8. But, at least two factual witnesses had
already been deposed as of the defendants’ November 30, 2012 experts’ reports deadline.
See id. at 2. Nothing precluded defendants’ expert from drafting a timely report and
supplementing his report at a later date, as outlined in Fed. R. Civ. P. 26(e) (stating a
party must supplement Rule 26(a) disclosures if the information on their report or
deposition is incomplete or incorrect).

I discussed other deadline justifications

defendants provided above and found them unpersuasive.

Similarly here, I find

defendants’ justification for the delay insufficient.
IV.

Santiago and PRHTA’s Ability to Overcome the Adverse Effects
Santiago and PRHTA argue that experts’ reports should be struck because they

were notified on April 29, 2013, leading to surprise and prejudice. Docket Nos. 56 at 1, ¶
4; 2, ¶ 6; 60 at 2-3, ¶ 3-4. Specifically, they argue that preparations for deposing Dr.
Garrett at this stage and the deposition itself will detract from trial preparations. Docket
No. 56 at 2, ¶ 6. “This is exactly the type of unfair tactical advantage that the disclosure
rules were designed to eradicate.” Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 60 (1st
Cir. 2001). “The rules require formal disclosure for a reason: without it, [the opposing

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party] may be hindered in their ability to prepare effectively for trial.” Esposito, 590 F.3d
at 78. Solely revealing the expert to the opposing parties without the report submission is
not compliant with the Rule 26 requirements. Peña-Crespo v. Puerto Rico, 408 F.3d 10,
13 (1st Cir. 2005) (citing Prieto v. Malgor, 361 F.3d 1313, 1317–18 (11th Cir. 2004)
(noting submitting the expert witness’ name is not enough and that each witness must
provide a written report containing the information required under Rule 26)). I discuss
the harmlessness of the delay for the accident reconstruction report and the damages
reports in turn.
A.

Accident Reconstruction Report

Defendants assert that any delay in Dr. Garrett’s report was not prejudicial
because Santiago and PRHTA were aware that Dr. Garrett would be an expert witness due
to his presence at the PRHTA employees’ depositions. Docket No. 66 at 9. They also
assert that Santiago and PRHTA have had sufficient time to depose Dr. Garrett between
the April 29 report submission and the July 15 trial date. Docket No. 66, 8. Finally,
defendants argue that Dr. Garrett’s opinion should be no surprise to Santiago since it
specifically addresses his theory of the case, and no surprise to PRHTA because it is
consistent with plaintiff’s experts’, which PRHTA should be prepared to counter. Docket
No. 66 at 5, 9.
First, Dr. Garrett’s presence in the depositions does not comply with the
disclosure requirements, especially absent the written report submission. See Fed. R. Civ.
P. 26(a)(2)(A)-(B) (stating that the parties are required to identify their expert witnesses
in a timely manner, and the disclosure must include an opinion report, unless the court
specifies otherwise). Here, the required report was not produced until April 29, 2013,
twenty-eight days past the discovery deadline, and three days prior to the dispositive
motions deadline. Additionally, by suggesting that opposing parties depose Dr. Garrett in
the time left before trial, defendants seem to disregard the court’s discovery deadline, and
brush off the disruption that their timing in submitting the report may have caused to both

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dispositive motion and trial preparations, providing further evidence of their lack of
regard for the court’s scheduling order. Discovery concluded on April 1, 2012. Docket
No. 54. The court order establishing so was a response to a motion for an extension of
time.

See Docket No. 53.

There are tools available for the parties to address

unforeseeable circumstances and defendants failed to take advantage of them.
Finally, in equating their experts’ reports with information already evidenced in
the record or that co-defendants should already be addressing, defendants miss the mark
in proving harmlessness and undermine the need for their late submission. This court has
found shorter delays than defendants’ in revealing an expert witness to be prejudicial as
they undercut the opportunity to “challenge his credentials, solicit expert opinions of its
own, or conduct expert-related discovery.” See Irizarry-Santiago v. Essilor Indus., CIV.
12-1098 FAB, 2013 WL 2352101 (D.P.R. May 30, 2013) (citing Lohnes, 272 F.3d at 60)
(Irizarry-Santiago had not submitted the expert report six weeks before the close of
discovery); see also Rivera Adams v. Wyeth, CIV. 03-1713 JAF, 2010 WL 5072061
(D.P.R. Dec. 3, 2010) (excluding causation expert testimony submitted three months after
experts’ reports deadline, during summary judgment).

Here, defendants may have

overcome the surprise element, but the short time opposing parties would have available
to counter the reports is still prejudicial.
B.

Damages Reports

Dr. José López’s independent medical evaluation was dated November 1, 2012,
while Mr. Antonio Rosado’s loss of income report and Dr. José Franceschini Carlo’s
forensic psychiatric report were dated November 30, 2012. Docket Nos. 56 at 2-3, ¶¶ 79; 73-1; 73-2; 73-3. Defendants thought that all expert reports should be turned in at the
same time, and since the accident reconstruction report was delayed, so were the three
damages reports. Docket No. 66 at 9. Defendants allege this is a harmless mistake
because the damages reports do not contradict the damages the plaintiff alleges, only their

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extent. Id. I addressed the prejudice against opposing parties caused by the delay above
and my position here is the same. The fact that defendants had these reports available to
them before their original experts’ reports deadline and failed to notify them until all
plausible estimations of a discovery deadline does nothing to help their case.
Defendants’ final argument that in the event their experts’ reports are struck,
plaintiff’s experts report should face the same sanctions similarly fails. Docket No. 66 at
10. Defendants argue plaintiff’s experts’ reports were submitted late on October 16, 2012
and supplemental reports were submitted as late as March 1, 2013. Id. Rule 26(e)
establishes that disclosures must be corrected or supplemented as needed by the time the
party's pretrial disclosures under Rule 26(a)(3) are due. Fed. R. Civ. P. 26(e). Rule
26(a)(3) sets the due date at least thirty days before trial. Fed. R. Civ. P. 26(a)(3).
Plaintiff submitted the supplemental reports thirty days before the conclusion of
discovery. Therefore the supplemental reports were timely. Ultimately, plaintiff admits
that his experts’ reports were one day late. Docket No. 56 at 2, ¶ 7. But, defendants
failed to argue how the one-day original submission delay was prejudicial to them, the
court, or any of the parties’ preparations. See Docket No. 66 at 10. The plaintiff’s oneday delay is harmless and does not warrant a Rule 37(c)(1) sanction.
V.

Impact on the District Court’s Docket
Not striking the experts’ reports would result in reopening discovery to avoid

prejudice against Santiago and PRHTA and pushing back a trial date that has been
established since July 2012. The district court has an interest in the efficient management
of its docket. Santiago-Díaz, 456 F.3d at 277. The court’s ability to manage its docket is
compromised when a party, without good cause, neglects to comply with reasonable
deadlines.

Id.

Here, on balance, the defendants’ disregard for the court ordered

deadlines, their failure to explain their need for the reports, the lack of substantial
justification, and the prejudice against the opposing parties further tip the scale away

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from burdening the court’s docket with the adjustments that would be warranted if the
experts’ reports are not struck.
CONCLUSION
For the foregoing reasons, Santiago and PRHTA’s motions to strike are
GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 1st day of July, 2013.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge