Providence Piers, LLC v. SMM New England, Inc. et al

Filing 96

MEMORANDUM AND ORDER denying without prejudice 91 Motion to Strike. So Ordered by Chief Judge William E. Smith on 11/6/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
SMM NEW ENGLAND, INC.,
)
)
Defendant.
)
___________________________________)
PROVIDENCE PIERS, LLC,

C.A. No. 12-532 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendant,

SMM

New

England,

Inc.

(“SMM”),

moves

to

strike George J. Geisser, III (“Geisser”), the designated
expert
expert

of

Plaintiff,

report

is

Providence

inadequate

Piers,
under

LLC,
Fed.

because
R.

Civ.

his
P.

26(a)(2)(B) and his methodology is unreliable under Fed. R.
Evid. 702.

(Def.’s Mot., ECF No. 91.)

Although Plaintiff

has undeniably failed to comply with the dictates of Rule
26(a)(2)(B)
deems

and

preclusion

juncture.

this
to

failure

is

be

severe

Accordingly,

too

SMM’s

inexcusable,
a

motion

this

sanction
is

at

DENIED

Court
this

WITHOUT

PREJUDICE.
I.

Background
Plaintiff’s

trespass,

claims

nuisance,

of
and

strict

liability,

tortious

negligence,

interference

with

Plaintiff’s use of its real property all arise from SMM’s
practice of stacking scrap on land directly adjacent to
Plaintiff’s property.

Plaintiff alleges that the enormous

weight of these scrap piles damaged the buildings on its
property.

After filing this action, Plaintiff submitted a

claim to its insurer seeking coverage for the damage.

In

the course of investigating the claim, Plaintiff’s insurer
retained

Exponent,

Inc.

(“Exponent”),

a

technical

consulting firm, to investigate the cause of the damage.
Exponent conducted its investigation and compiled a report
detailing its investigative efforts and conclusions.
During discovery, SMM learned of the Exponent report
and

strove

to

get

its

hands

on

it.

Magistrate

Judge

Patricia A. Sullivan ordered Plaintiff’s insurer to produce
the

report.

“differential

(ECF

No.

76.)

settlement”

The

was

report

causing

concluded
damage

to

that
the

buildings on Plaintiff’s property and that, although this
differential

settlement

predated

SMM’s

scrap-metal

operations, SMM’s operations exacerbated the problem.
On the deadline for disclosing its expert witnesses,
Plaintiff designated Geisser as its sole expert witness.
In connection with this disclosure, Plaintiff also produced
Geisser’s expert report.

(Geisser Report, Ex. B to Def.’s
2

Mot., ECF No. 91-3.)
to

comply

with

SMM contends that this report fails

Rule

26(a)(2)(B)

and

that,

therefore,

Geisser must be precluded from testifying as an expert in
this case.
II.

Discussion
Federal Rule of Civil Procedure 26(a)(2)(B) requires

that,

in

employed

the
to

case

of

provide

a

witness

expert

“retained

testimony

in

or
the

specially
case,”

a

party’s expert disclosure must be accompanied by a written
report.

Rule 26’s written-report requirement is vital to

ensuring that the opposing party can “prepare effectively
for trial.”

Esposito v. Home Depot U.S.A., Inc., 590 F.3d

72,

Cir.

78

(1st

2009);

see

also

Samaan

Hosp., 670 F.3d 21, 35 (1st Cir. 2012).
is

self-executing

disclosure.”

and

does

not

v.

St.

Joseph

“The requirement

countenance

selective

JJI Int’l, Inc. v. Bazar Grp., Inc., C.A. No.

11-206ML, 2013 WL 3071299, at *4 (D.R.I. Apr. 8, 2013).
Conversely, the “[f]ailure to include information . . .
that is specifically required by Rule 26(a)(2)(B) . . .
frustrates the purpose of candid and cost-efficient expert
discovery.”

Ortiz-Lopez v. Sociedad Espanola de Auxilio

Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st
Cir. 2001).
3

Rule 26 leaves no doubt about the detail that must be
included in an expert report.

The rule sets forth a list

of

including,

the

essential

ingredients,

inter

alia,

“a

complete statement of all opinions the witness will express
and the basis and reasons for them” and “the facts or data
considered by the witness in forming them.”

Fed. R. Civ.

P. 26(a)(2)(B)(i)-(ii).
In

this

case,

the

exceedingly

brief

Geisser

falls well short of the mark in both respects.
charitably,

it

contains

the

following

three

Report
Viewed

discernable

opinions: (1) the “soils” on SMM’s property, which “are not
stable or capable of supporting” the “substantially heavy
load” created by SMM’s scrap-metal operations, “are being
pressurized,
[Plaintiff’s]

and[,]

because

Buildings,

of

the

the

close

supporting

proximity

soil,

to

primarily

below the south walls, is being affected”; (2) “the loading
placed on the unstable soils, coupled with the vibrations
being caused by the work on the SMM site, are the leading
contributors

to

[Plaintiff’s]

the

Buildings”;

ongoing
and

settlement
(3)

“without

affecting
proper

stabilization and repair of the affected walls, a collapse
of one or more of the walls will occur in the not too
distant future.”

(Geisser Report 1-2.)
4

The

Geisser

requisite
reasons

Report

“complete
for”

statement

Geisser’s

26(a)(2)(B)(i).

utterly

fails

to

set

forth

the

.

.

the

basis

and

of

.

opinions.

Fed.

R.

Civ.

P.

For starters, Geisser makes no attempt to

state the basis for or reasons behind the first and third
opinions

quoted

above.

Regarding

his

second

opinion,

Geisser claims to base it on his recent observations of the
property and the Exponent report.

However, the Geisser

Report does not describe his recent observations or explain
why they support his opinions.

Similarly, Geisser does not

identify the pertinent passages of the Exponent report —
beyond

offering

a

general

explanation

of

the

report’s

conclusion “that the walls and floors adjacent to the SMM
property are settling due in large part to the heavy loads,
and vibrations from activity on the SMM site” — or explain
how the Exponent report supports his opinions.
Report

1.)

Finally,

although

Geisser

(Geisser

refers

to

a

comparison of “crack-monitor” readings, his report does not
relay

those

readings,

explain

how

they

support

his

opinions, or even explain what they measure.
Far
expected

from
to

conveying

present

“the

during

testimony

direct

the

witness

examination,

is

together

with the reasons therefor,” Fed. R. Civ. P. 26(a)(2)(B),
5

adv. comm. note, 1993 Amendment, the report provides merely
Geisser’s

bottom-line

conclusions,

divorced

from

explanation of the supporting basis or reasons.

any

Indeed,

Plaintiff has not offered any argument that the Geisser
Report complies with this aspect of Rule 26.
The Geisser Report also fails to contain “the facts or
data

considered

by

[Geisser]

in

forming”

Fed. R. Civ. P. 26(a)(2)(B)(ii).

his

opinions.

The Advisory Committee

Note to the 2010 Amendment to Rule 26(a)(2)(B) explains
that “the intention is that ‘facts or data’ be interpreted
broadly to require disclosure of any material considered by
the

expert,

from

ingredients.”

whatever

source,

that

contains

factual

See also JJI, Int’l, 2013 WL 3071299, at *4.

Although the Geisser Report discloses the fact of the
occurrence of his two onsite inspections in 2014, his prior
test borings and installation of helical piles in 2005 and
2006,

and

the

comparison

of

crack-monitor

additional facts or data are disclosed.

readings,

no

The report does

not explain what was done or observed at either of the 2014
site inspections.
taken

or

tests

To the extent that any measurements were
conducted

during

these

site

inspections,

both the fact that they occurred and the results need to be
disclosed.

Additionally,

the
6

report

makes

clear

that

Geisser took crack-monitor readings and compared them to
earlier readings, but the report does not contain these
readings.
26

by

Therefore, the report fails to comply with Rule

omitting

facts

forming his opinions.

or

data

considered

by

Geisser

in

See id. at *1, *4-5 (concluding that

an expert report failed to comply with Rule 26(a)(2)(B)(ii)
when it omitted raw survey data considered by the expert).
Although

it

is

readily

apparent

that

the

Geisser

Report is insufficient under Rule 26, the question of the
appropriate sanction for this discovery violation is not so
easily resolved.

Federal Rule of Civil Procedure 37(c)(1)

provides that, “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) . . . , 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

harmless.”

failure

was

substantially

justified

or

is

Plaintiff — the party that has committed the

discovery violation — bears the burden of showing that the
violation was either substantially justified or harmless.
See Wilson v. Bradlees of New England, Inc., 250 F.3d 10,
21

(1st

Cir.

2001).

Plaintiff

has

not

burden on either preclusion escape hatch.

7

shouldered

its

On the substantial-justification front, Plaintiff has
not contested that the Geisser Report fails to contain the
requisite complete statement of the basis and reasons for
Geisser’s opinions.

This silence speaks volumes, and it

indicates that Plaintiff has no justification — let alone a
substantial

one

–

explanation

of

the

opinions.
omission

for

failing

basis

to

and

include

reasons

the

behind

required
Geisser’s

Plaintiff also has not shown that the report’s
of

facts

and

data

is

substantially

justified.

Although Plaintiff lists in its Opposition all of the facts
and

data

simply

mentioned

the

Geisser

that

emphasizes

in

the

report

report,
omits

this

facts

effort

and

data

considered by Geisser, such as the substance of the crackmonitor readings, for example.
Moreover,

Plaintiff

understanding

of

the

betrays
purposes

a

patently

for

the

incorrect

expert-report

requirement.

Plaintiff asserts that “SMM is free to depose

Mr.

on

Geisser

what

he

relied

upon

in

forming

these

opinions.”

(Plaintiff’s Opposition (“Pl.’s Opp’n”) 7, ECF

No.

However,

92.)

Rule

26

envisions

disclosure

of

a

written report containing all of the specified requirements
before

the

Committee

expert
Note

to

is

deposed

the

rule
8

because,
suggests,

as
a

the

Advisory

sufficiently

detailed expert report may limit the scope of, or eliminate
the need for, the expert’s deposition.

See Fed. R. Civ. P.

26(b)(4)(A), adv. comm. note, 1993 Amendment (“[T]he length
of the deposition of . . . experts should be reduced, and
in

many

cases

deposition.”).
identify

the

report

may

eliminate

the

need

for

a

By suggesting that Geisser’s deposition can

“what

[Geisser]

relied

upon

in

forming

[his]

opinions,” Plaintiff is shifting its burden of compliance
with Rule 26 to SMM.
Finally, Plaintiff failed to seasonably supplement the
Geisser Report even after SMM notified Plaintiff of the
report’s

obvious

deficiencies.

Cf.

JJI

Int’l,

2013

WL

3071299, at *5 (finding substantial justification where the
raw survey data that was missing from the expert report was
provided

to

requested).

the

opposing

Without

party

question,

shortly

after

Plaintiff’s

it

was

discovery

violation was not substantially justified.
Plaintiff fares no better in attempting to show that
its noncompliance with Rule 26(a)(2)(B) was harmless.
Advisory
37(c)(1)

Committee
offers

Note
the

to

the

following

violations:

9

1993

Amendment

examples

of

to

The
Rule

harmless

[T]he
inadvertent
omission
from
a
Rule
26(a)(1)(A) disclosure of the name of a potential
witness known to all parties; the failure to list
as a trial witness a person so listed by another
party; or the lack of knowledge of a pro se
litigant of the requirement to make disclosures.
These examples “suggest

a

fairly

limited

concept

of

‘harmless,’” Gagnon v. Teledyne Princeton, Inc., 437 F.3d
188,

197

(1st

Cir.

2006),

and

Plaintiff’s

blatant

noncompliance with Rule 26(a)(2)(B) does not fall within
this small umbrella.
Additionally,
inadequate
to

depose

should

have

been

some

remedy

for

the

Report,

Geisser

forced

without

SMM

insists

that

it

Geisser

to

disclosed

unfair surprise at trial.
scenario

undermines

requirement.

the

learn
in

the

the

grossly
will

information

report

and

to

(Def.’s Mot. 15 n.3.)

purpose

Furthermore,

behind

Geisser’s

the

be

that
avoid

Such a

expert-report

deposition

could

reveal information that necessitates a response from SMM’s
rebuttal

experts,

which

will

inevitably

that expert discovery has closed.

cause

delay

now

See Genereux v. Raytheon

Co., 754 F.3d 51, 60 (1st Cir. 2014) (explaining that the
need to redo discovery harms both the opposing party and
the

court’s

interest

in

administering

Therefore, this violation was not harmless.
10

its

docket).

Because
26(a)(2)(B)
harmless,

Plaintiff’s
was

the

noncompliance

neither

“baseline

with
justified

substantially
sanction”

Rule
nor

called

37(c)(1) is preclusion of the witness.

for

by

Rule

Gay v. Stonebridge

Life Ins. Co., 660 F.3d 58, 62 (1st Cir. 2011).

However,

“preclusion ‘is not a strictly mechanical exercise,’” and
this Court has discretion to choose a less severe sanction.
Id. (quoting Esposito, 590 F.3d at 77).
appropriate
pertinent

sanction,
factors,”

courts
such

consider

as:

(1)

In selecting the

“a

“the

multiplicity
history

of

of
the

litigation”; (2) “the proponent’s need for the challenged
evidence”; (3) “the justification (if any) for the late
disclosure,”
disclosure;

or,
(4)

as

“the

in

this

opponent’s

case,

the

ability

to

incomplete
overcome

its

adverse effects, including [s]urprise and prejudice”; and
(5)

“what

court’s

the

[incomplete]

docket.”

Macaulay

v.

Finally,

“when

disclosure

Samaan,

Anas,
‘[a]

321

670

F.3d

sanction

45,

F.3d
51

portends
at

36-37

(1st

carrie[s]

the

Cir.

for

the

(quoting
2003)).

force

of

a

dismissal, the justification for it must be comparatively
more robust.’”

Id. at 36 (quoting Esposito, 590 F.3d at

79).

11

In

this

case,

although

the

Court

is

troubled

by

Plaintiff’s profound noncompliance with Rule 26(a)(2)(B),
there is some basis for concluding that the sanction of
preclusion

is

not

warranted

at

this

time.

Most

importantly, Plaintiff appears to have a strong need for
Geisser’s expert testimony.

See Esposito, 590 F.3d at 78-

80.

nuisance

Although

Plaintiff’s

and

trespass

claims

might not require expert testimony, Plaintiff must have an
expert in order to establish a causal link between SMM’s
scrap-metal

operations

and

the

differential

settlement

occurring on Plaintiff’s property, as this link requires
“scientific,

technical,

or

other

specialized

knowledge,”

Fed. R. Evid. 702, that is not possessed by a lay person.
Because

the

Plaintiff

expert-disclosure

will

not

have

such

deadline
an

has

expert

long

if

passed,

Geisser

is

struck; and, inevitably, the claims hinging on this causal
link would then fall away.
Additionally,

the

history

of

giving Plaintiff another chance.
which

Plaintiff

has

routinely

obligations and deadlines.

this

litigation

favors

This is not a case in
flouted

its

discovery

Rather, this appears to be a

one-time, albeit major, breach of the rules, arguably the
result of a lack of understanding or care and not malice or
12

bad faith. 1

Therefore, this Court is reluctant to impose “a

fatal sanction . . . for a single oversight.”

Esposito,

590 F.3d at 79.
To

be

sure,

preclusion.

not

all

of

the

factors

weigh

against

As explained above, Plaintiff has offered no

justification
noncompliance.

—

substantial

or

otherwise

—

for

its

Additionally, if Plaintiff is permitted to

supplement the Geisser Report, expert discovery will need
to be reopened to allow SMM a reasonable amount of time to
determine whether supplemental rebuttal reports are needed.
Moreover, SMM will incur costs associated with reviewing
Geisser’s

1

supplemental

report

and,

if

deemed

reasonably

SMM argues that the history of the litigation favors
preclusion because Plaintiff is engaging in gamesmanship.
Because Plaintiff’s attempt to depose the author of the
Exponent report without paying his customary expert fee was
rebuffed by Judge Sullivan, SMM contends, Plaintiff has
employed Geisser to parrot Exponent’s conclusions without
paying Exponent.
Although this argument is not without
some force, this Court is reluctant to conclude that any
sinister gamesmanship is afoot.
Plaintiff has stated that
its effort to depose Exponent’s representative occurred
before the Exponent report was produced to the parties and
that, after seeing the report’s favorable conclusions,
Plaintiff decided that a deposition of Exponent was “not a
pressing matter.”
(Plaintiff’s Opposition 2, ECF No. 92.)
Additionally, Plaintiff stated at the hearing on this
motion that its deposition of the author of the Exponent
Report will occur in the near future, with Plaintiff paying
the customary expert fee.
13

necessary, compiling supplemental rebuttal reports of its
own.
However,

any

potential

prejudice

to

supplementation would cause can be reduced.
stated
opinions

that,

if

would

added.

supplementation

not

(Pl.’s

change
Opp’n

and

is

no

In

that

Plaintiff has

allowed,

new

8.)

SMM

Geisser’s

opinions
other

would

words,

be
any

supplementation will cure the deficiencies in the original
report — the absence of the basis and reasons for Geisser’s
opinions and the facts and data he considered in forming
those opinions — and go no further.
Additionally, the limited scope of the supplementation
should

narrow

the

scope

of

any

supplemental

efforts that Defendant deems necessary.

discovery

Finally, taxing

SMM’s reasonable attorneys’ fees and costs occasioned by
supplementation

to

Plaintiff

will

further

alleviate

any

prejudice.
In sum, although Plaintiff’s noncompliance with Rule
26(a)(2)(B) is troubling, the possibility that preclusion
of Geisser will be tantamount to a dismissal of some of
Plaintiff’s claims looms large.
determines
Report,

that

but,

as

Plaintiff
a

may

sanction,
14

Accordingly, this Court
supplement

SMM’s

the

reasonable

Geisser

attorneys’

fees and costs that are occasioned by supplementation will
be taxed to Plaintiff.

If Plaintiff fails to produce a

supplemental report that complies with the particulars of
Rule 26(a)(2)(B), Geisser will not be permitted to testify
as an expert witness.
III. Conclusion
For these reasons, Plaintiff is ordered to produce a
supplement to the Geisser Report within thirty (30) days of
the date of this order.
address

the

Any supplemental report will only

deficiencies

identified

in

this

order;

alteration or additional opinions are permitted.
the

expiration

of

this

time

period,

Plaintiff

no

If, at
has

not

provided a supplemental expert report that fully complies
with Rule 26(a)(2)(B), Geisser will not be permitted to
testify as an expert witness at trial.
produce

a

compliant

supplemental

If Plaintiff does

expert

report,

it

will

bear SMM’s reasonable attorneys’ fees and costs occasioned
by that supplementation, including, but not limited to, the
review

of

supplemental

the

supplemental

rebuttal

report,

reports,

15

and

the

preparation

of

the

deposition

of

Geisser.

SMM’s

motion

to

strike

is

DENIED

WITHOUT

PREJUDICE. 2
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 6, 2014

2

Because this Court is permitting Plaintiff to
supplement
the
Geisser
Report,
SMM’s
argument
that
Geisser’s methodology is unreliable under Fed. R. Evid. 702
will not be addressed at this time.
16