Priester v. Futuramic Tool & Engineering Company et al

Filing 112

ORDER granting 87 Motion to Strike ; denying 89 Motion to Exclude Signed by Honorable David C Norton on January 18, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
LISA J. PRIESTER, individually, and as
Personal Representative of the Estate of
David A. Priester, Jr.,
Plaintiff,
vs.
FUTURAMIC TOOL & ENGINEERING
COMPANY; CAPITAL WELDING,
INC.; MCMASTER-CARR SUPPLY
COMPANY; INTEC AUTOMATED
CONTROLS, INC.; and SAR
AUTOMATION, L.P.,
Defendants.

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No. 2:14-cv-01108-DCN

ORDER

This matter comes before the court on defendants Futuramic Tool & Engineering
Company and Capital Welding Inc.’s (collectively, “Futuramic”)1 Motion to Strike or
Exclude the Affidavits of Priester’s Experts Daryl Ebersole (“Ebersole”) and Bartley
Eckhardt (“Eckhardt”), ECF No. 87, and defendant SAR Automation, L.P.’s (“SAR”)
Motion to Exclude Ebersole, ECF No. 89. For the reasons set forth below, the court
grants Futuramic’s Motion to Strike or Exclude the Affidavits of Ebersole and Eckhardt
and denies SAR’s Motion to Exclude Ebersole.
I. BACKGROUND
This litigation arises out of a fatal accident at the Boeing manufacturing facility in
North Charleston, South Carolina. ECF No. 75 at 1. On March 18, 2013, the decedent,

1

Since Futuramic and Capital Welding’s interests are aligned for the purposes of
this motion, the court refers to them collectively as “Futuramic.”
1

David Priester (“Mr. Priester”)2 was working on an elevated work platform (“Cell 90”)
when he fell through an opening eighteen feet above the concrete floor. Id. Cell 90 was
designed with eighteen movable sliders which extend at varying lengths to conform to the
curving nature of the body of the aircraft barrel. Id. at 4–5. The design of Cell 90 called
for the sliders to be no more than three inches from the aircraft barrel. Id. At the time of
the incident, Mr. Priester and four other Boeing employees were working on Cell 90, and
following the last shift break attempted to extend the sliders to continue working on the
aircraft. However, Slider #2 did not extend the entire length to the aircraft barrel, leading
to a gap between the end of Slider #2 and the barrel of the aircraft. ECF No. 88 at 3. Mr.
Priester and the other Boeing employees continued to work on the platform, and after
working for approximately one hour on Cell 90, Mr. Priester fell through the gap between
Slider #2 and the aircraft barrel. ECF No. 88 at 4. Mr. Priester later died as a result of
the injuries sustained from the fall. ECF No. 75 at 1. Priester is the widow of Mr.
Priester and the personal representative of his estate. Id.
Priester filed the present suit on March 24, 2014 against Futuramic, Capital
Welding, McMaster-Carr Supply Company, and Intec Automated Controls, Inc. She
asserts strict liability claims against Futuramic, Capital, and McMaster-Carr, and causes
of action for negligence, loss of consortium and punitive damages against all defendants. 3

2

For clarity, the court refers to Lisa Priester, who is the plaintiff in this case, as
“Priester” and decedent David Priester as “Mr. Priester.”
3
Futuramic is the manufacturer of Cell 90. ECF No. 75 at 1. Capital Welding
performed the fabrication work for Cell 90 and installed it at the Boeing facility. Id.
Intec installed the electronics and provided the programming for Cell 90. Id. SAR
performed modifications to Cell 90 after it was delivered and installed in the Boeing
facility, including modifications to Intec’s programming. Id.
2

ECF No. 88 at 2. On September 17, 2014, Priester amended her complaint to add SAR as
a defendant. ECF No. 88 at 2.
Priester identified a number of experts to testify in the case. The two motions
before the court concern two of those experts, Daryl L. Ebersole (“Ebersole”) and Bartley
J. Eckhardt, P.E. (“Eckhardt”). Futuramic filed a motion to strike or exclude on
September 6, 2016, arguing that the affidavits of Eckhardt (ECF No. 82, Ex. 4) and
Ebersole (ECF No. 82, Ex. 5) should be excluded because they constitute improper
supplementation under Federal Rule of Civil Procedure 26 and therefore are untimely.
ECF No. 87. Priester responded on September 23, 2016, ECF No. 94, and Futuramic
replied on September 30, 2016, ECF No. 95. SAR filed a motion to exclude on
September 13, 2016, arguing that Ebersole’s testimony should be excluded under Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
ECF No. 89. Priester filed a response on October 21, 2016, ECF No. 100, to which SAR
replied on November 4, 2016, ECF No. 101. Both motions have been fully briefed and
are now ripe for the court’s review.
II. STANDARD
A. Federal Rule of Evidence 702
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
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(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
District courts serve as gatekeepers for expert testimony. The court has a “special
obligation” to ensure that expert testimony is relevant and reliable. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999).
Under Daubert, the court must address two questions: first, whether the expert’s
testimony is based on “scientific knowledge”; and second, whether the testimony “will
assist the trier of fact to understand or determine a fact in issue.” 509 U.S. at 592. The
first question is answered by assessing “whether the reasoning or methodology
underlying the testimony is scientifically valid.” Id. at 592–93. Several nondispositive
factors should be considered in determining the reliability of a particular scientific theory
or technique: whether it (1) can be and has been tested; (2) has been subjected to peer
review and publication; (3) has a known or potential rate of error; and (4) has attained
general acceptance in the pertinent scientific community. See id. at 593–94. In
considering these factors, the focus “must be solely on principles and methodology, not
on the conclusions that they generate.” Id. at 595. The factors are not exclusive; what
factors are relevant to the analysis “depends upon the particular circumstances of the
particular case at issue.” Kumho Tire, 526 U.S. at 150.
The second inquiry “goes primarily to relevance.” Daubert, 509 U.S. at 591.
Relevance is determined by ascertaining whether the testimony is sufficiently tied to the
facts of the case such that it will aid the jury in resolving a factual dispute. Id. at 593. “A
review of the caselaw after Daubert shows that the rejection of expert testimony is the
4

exception rather than the rule.” Fed. R. Evid. 702, Advisory Committee’s Note to 2000
Amendments. “Daubert did not work a ‘seachange over federal evidence law,’ and ‘the
trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary
system.’” Id. (quoting United States v. 14.38 Acres of Land Situated in Leflore Cnty., 80
F.3d 1074, 1078 (5th Cir.1996)).
B. Federal Rule of Civil Procedure 26
Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose “the
identity of any witness [they] may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” Fed.R.Civ.P. 26. Rule 26(a)(2)(B) further requires litigants
to produce written reports for any witness who is “retained or specially employed to
provide expert testimony in the case” or “whose duties as the party’s employee regularly
involve giving expert testimony.” Those reports must include:
(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). Rule 37(c) (1) “gives teeth” to the Rule 26(a)(2)
requirements by “forbidding a party’s use of improperly disclosed information at a trial,
at a hearing, or on a motion, unless the party’s failure to disclose is substantially justified
or harmless.” Tokai Corp. v. Easton Enterprises, 632 F.3d 1358, 1365 (Fed. Cir. 2011).
Under Rule 26(e), with respect to expert reports, a party’s duty to supplement
extends both to information included in the report and to information given during the
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expert’s deposition. Fed. R. Civ. P. 26(e). Rule 26(e) permits supplemental reports only
for the narrow purpose of correcting inaccuracies or adding information that was not
available at the time of the initial report. Keener v. United States, 181 F.R.D. 639, 640
(D. Mont. 1998); Coles v. Perry, 217 F.R.D. 1, 3 (D.D.C. 2003) (“Fed. R. Civ. P. 26(e)
does not grant a license to supplement a previously filed expert report because a party
wants to, but instead imposes an obligation to supplement the report when a party
discovers the information it has disclosed is incomplete or incorrect.”).
III. DISCUSSION
A.

SAR’s Motion to Exclude Ebersole

SAR moves to exclude Ebersole’s testimony under Rule 702 and Daubert, arguing
that Ebersole’s testimony lacks the appropriate basis in scientific and technical
knowledge and is not reliable. ECF No. 89 at 1. SAR’s arguments fall in to the
following categories: (1) Ebersole offers inadmissible legal conclusions, which are
outside the scope of his allowable testimony as an expert witness; (2) Ebersole offers
conclusions of fact rather than providing his opinions; and (3) Ebersole’s opinions are
unreliable because are based on errors of application.4 ECF No. 89 at 3. All of these
arguments center on Ebersole’s testimony that SAR’s modifications to Cell 90 made it a
remanufacturer pursuant to American National Standards Institute (“ANSI”) standard
92.6, an industry standard for work platforms that Boeing allegedly required Cell 90 to

4

SAR concedes that Ebersole “is likely a qualified witness” with the requisite
general credentials to satisfy the first prong of the Daubert analysis, so the court moves
on the relevance prong of Daubert to determine whether Ebersole’s testimony is
sufficiently tied to the facts of the case such that it will aid the jury in resolving a factual
dispute. Daubert, 509 U.S. at 593.
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comply with, thereby subjecting SAR to “the responsibilities of a manufacturer as set
forth in section 4 of the [ANSI standard].” ECF No. 99, Ex. 1, Ebersole Report, p. 30.
1.

Inadmissible Legal Conclusions

SAR first contends that Ebersole’s testimony should be excluded because he
makes “inadmissible legal conclusions.” ECF No. 89 at 3. Specifically, SAR argues that
Ebersole’s testimony on duty and breach are legal conclusions outside the scope of
Ebersole’s testimony as an expert witness. ECF No. 89 at 3.
In United States v. McIver, 470 F.3d 550, 561–62 (4th Cir. 2006), the Fourth
Circuit noted that while “[t]he line between a permissible opinion on an ultimate issue
and an impermissible legal conclusion is not always easy to discern,” the court identifies
improper legal conclusions by determining whether “the terms used by the witness have a
separate, distinct and specialized meaning in the law different from that present in the
vernacular.” SAR relies solely on Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th
Cir. 1986), abrogated on other grounds by Pinter v. Dahl, 486 U.S. 622 (1988), to support
its argument that Ebersole’s testimony should be excluded. In Adalman, the expert
witness testified about the meaning of legal terms, including the difference between a
contract and an option. Id. at 368. In excluding the expert, the Adalman court found it
persuasive that “[f]rom beginning to end” the appellant proffered the expert witness to
testify “in substantial part” as to the applicability of the securities law, and in the process,
“giv[e] his expert opinion on the governing law.” Id. While the expert in Adalman
offered opinions such as “legally the offering is made through the offering
memorandum,” Adalman, 807 F.2d at 366, after a close reading of the disputed testimony
the court is unconvinced that Ebersole’s opinions touch on SAR’s duty or breach of that
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duty at all. Instead, when asked if SAR had an “obligation to warn Boeing, or at least
inform Boeing[,] of the potential safety ramifications of removal of the sensors,”
Ebersole replied “that’s correct.” ECF No. 89, Ex. 2, Ebersole Dep. p. 3. In opining
upon SAR’s obligation to warn Boeing, Ebersole may have been speaking in terms of
SAR’s duty generally but the court finds that he was not offering an opinion as to SAR’s
legal duty—in other words, although Ebersole used terms similar to that which courts
have employed to express the underlying issue of negligence, none is sufficiently
specialized to render his testimony inadmissible.
A review of cases where courts found that the expert impermissibly opined on
ultimate issues of law is instructive. In Hermitage Indus. v. Schwerman Trucking Co.,
814 F. Supp. 484 (D.S.C. 1993), the court excluded expert testimony that an owner of a
chemical facility was “negligent” and that the owner’s conduct was the “direct,
proximate, and efficient cause” of a chemical explosion. Other courts have held
inadmissible expert testimony that a defendant's actions constituted “extortion,” DiBella
v. Hopkins, 403 F.3d 102, 121 (2d Cir. 2005); that defendants owed a “fiduciary”
relationship to plaintiffs, Christiansen v. Nat’l Sav. & Trust Co., 683 F.2d 520, 529 (D.C.
Cir. 1982); and that a product was “unreasonably dangerous,” Strong v. E.I. DuPont de
Nemours Co., 667 F.2d 682, 685–86 (8th Cir. 1981). In contrast, here Ebersole replied
only that SAR “did not act to prevent this from causing a potentially hazardous situation”
when asked if SAR breached a standard of care. Ebersole Dep. at p. 4. The court finds
that Ebersole does not offer a legal conclusion but instead expresses an opinion on SAR’s
actions and inactions during the commissioning of Cell 90.
2.

Conclusions of fact
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Next, SAR argues that by opining that SAR is a remanufacturer under ANSI
Standard ANSI 92.6-2006, Ebersole draws a conclusion of fact that is for the jury to
decide instead of “providing an opinion on the standards applicable to the facts of the
case.” ECF No. 89 at 3.5 Rule 704 states that an expert’s opinion is not objectionable
“just because it embraces an ultimate issue.” Fed. R. Evid. 704. In other words,
questions of fact that are committed to resolution by the jury “are the proper subject” of
opinion testimony. McIver, 470 F.3d at 561. Accordingly, the court finds that Ebersole’s
opinion that SAR’s modifications to Cell 90 make it a remanufacturer under the ANSI
standards is an opinion on the standards applicable to the facts of the case, and is
admissible. In his Rule 26 report, Ebersole clearly identifies what industry standards
were applicable to Cell 90. ECF No. 100, Ex. 1, Ebersole Report at 30 (“Whenever an
aerial platform is remanufactured by an entity other than the original manufacturer, the
remanufacturer shall assume the responsibilities of a manufacturer.”). Ebersole opines
that SAR modified Cell 90 by enabling “additional manual controls” and “defeating” the
logic sensors, and that these actions make SAR a remanufacturer under the standard.
While the question of whether SAR’s commissioning of Cell 90 makes it a

5

SAR also contends that Ebersole’s opinion that SAR is a remanufacturer is
predicated on an inaccurate reading of the standard. ECF No. 89 at 4. In support, SAR
points to the testimony of Futuramic and SAR’s expert Paul Turner, who states that SAR
did not meet the definition of remanufacturer. ECF No. 89, Ex. 4, Turner Dep. at p. 6
(“[P]er the definition and the standard of remanufacture, SAR did not meet that
definition.”). If, as SAR argues, by stating that SAR is a remanufacturer Ebersole makes
an impermissible conclusion of fact then surely by stating that SAR is not a
remanufacturer SAR’s own expert Turner runs into this same problem. The court
observes that “what’s good for the goose is good for the gander,” but since there are
alternate grounds for rejecting SAR’s motion, the court will not make a finding on this.
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“remanufacturer” under ANSI 92.6-2006 is certainly one for the jury, under McIver it is
acceptable for Ebersole to testify on it as well.
3.

Errors of Application

SAR’s final argument is that Ebersole’s conclusions are based on an erroneous
application of the ANSI standards, and are therefore unreliable. ECF No. 89 at 3. SAR
asserts that while Ebersole uses ANSI 92.6-2006 as the applicable standard for SAR’s
work, this standard is “unreliable” because “[b]oth Futuramic’s and SAR’s experts
disagree” that this standard should apply. Id. This reasonable difference of opinion
between Ebersole and Futuramic and SAR’s experts does not make the challenged
representation—that ANSI 92.6-2006 is the applicable standard—literally false. See,
e.g., Smith v. Wyeth-Ayerst Labs. Co., 278 F. Supp. 2d 684, 710 (W.D.N.C. 2003)
(“Daubert and its progeny does not eliminate the need for, or otherwise prohibit, a ‘battle
of the experts’ as long as each of the expert’s reasoning and methodology is sound.”);
Allapattah Servs., Inc. v. Exxon Corp., 61 F. Supp. 2d 1335, 1341 (S.D. Fla. 1999)
(“Merely because two qualified experts reach directly opposite conclusions . . . does not
necessarily mean that, under Daubert, one opinion is per se unreliable.”), aff’d, 333 F.3d
1248 (11th Cir. 2003), aff’d sub nom. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546 (2005). The court’s gatekeeping role is not meant to displace “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof” as “the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596; see also Electro-Mech. Corp. v. Power Distribution
Prod., Inc., 926 F. Supp. 2d 822, 838 (W.D. Va. 2013) (recognizing that a party’s

10

“disagree[ments] with the substance of [an] expert’s opinions . . . are best addressed on
cross-examination.”).
SAR introduces a new argument in the reply, that Ebersole’s testimony on SAR’s
liability is based on his application of ANSI 92.6-2006, which was “never incorporated in
the work SAR was contracted by Boeing to perform,” “[t[here was no communication
between SAR and Boeing which referenced ANSI 92.6,” and that “[n]either the statement
of work, nor the bid that SAR presented to Boeing . . . incorporated ANSI 92.6
standards.” ECF No. 101 at 2. To the extent that SAR is using this Daubert motion to
contest Ebersole’s identification of ANSI 92.6-2006 as the applicable standard altogether,
that argument is better suited to a motion for summary judgment or for trial. The court’s
gatekeeping function under Daubert is limited to determining if Ebersole’s challenged
testimony is based on unreliable data or methodology. See i4i Ltd. P’ship v. Microsoft
Corp., 598 F.3d 831, 852 (Fed. Cir. 2010) (“When [an expert’s] methodology is sound,
and the evidence relied upon sufficiently related to the case at hand, disputes about the
degree of relevance or accuracy (above this minimum threshold) may go to the
testimony’s weight, but not its admissibility.”), aff’d, 564 U.S. 91 (2011). The court is
satisfied that in his Rule 26 report, Ebersole adequately identifies his methodology for
opining that ANSI 92.6-2006 is the applicable standard. See Ebersole Report at 24–35.
The court finds that Ebersole properly offered inferences drawn from facts as
opposed to impermissible legal conclusions, that he did not make improper conclusions
of fact, and that his application of relevant standards to the facts of the case is reliable.
Therefore, the court denies SAR’s motion to exclude Ebersole.

11

B.

Futuramic and Capital Welding’s Motion to Strike or Exclude the
Affidavits of Eckhardt and Ebersole

Futuramic argues that the affidavits of Ebersole and Eckhardt which were
attached as exhibits to Plaintiff’s Memorandum in Opposition to Futuramic’s Motion for
Partial Summary Judgment and Defendant Capital Welding’s Motion for Complete
Summary Judgment should be struck or excluded because the affidavits are improper
supplementation under Rule 26 and are untimely. ECF No. 87 at 2. Priester filed Rule
26(a)(2) disclosures and the Rule 26 expert reports of Ebersole and Eckhardt on
December 22, 2015. Id. Ebersole was deposed on February 19, 2016, and Eckhardt was
deposed on February 3, 2016. Id. In response to Futuramic and Capital Welding’s
summary judgment motions, Ebersole and Eckhardt submitted new affidavits eight
months after the deadline to submit expert reports and six months after Ebersole and
Eckhardt were deposed. Id.
Rule 26(e)(1) requires supplementation when a “party learns that in some material
respect the information disclosed is incomplete or incorrect.” With respect to expert
reports, a party’s duty to supplement extends both to information included in the report
and to information given during the expert’s deposition. Fed. R. Civ. P. 26(e). Courts
within the Fourth Circuit have held that Rule 26(e) permits supplemental reports only for
the narrow purpose of correcting inaccuracies or adding information that was not
available at the time of the initial report.6 In Akeva L.L.C. v. Mizuno Corp., 212 F.R.D.

6

Courts outside of the Fourth Circuit have reached similar conclusions. See, e.g.,
Coles v. Perry, 217 F.R.D. 1, 3 (D.D.C.2003) (“Fed. R. Civ. P. 26(e) does not grant a
license to supplement a previously filed expert report because a party wants to, but
instead imposes an obligation to supplement the report when a party discovers the
information it has disclosed is incomplete or incorrect.”); Beller ex rel. Beller v. United
12

306, 310 (M.D.N.C. 2002), the court reasoned that “to construe supplementation to apply
whenever a party wants to bolster or submit additional expert opinions would [wreak]
havoc in docket control and amount to unlimited expert opinion preparation.” Similarly,
in Palmetto Pharm. LLC v. AstraZeneca Pharm. LP, No. 2:11-cv-00807, 2012 WL
4369259, at *3 (D.S.C. July 18, 2012), the court granted a motion to strike where a
supplemental report was “not provided to correct or complete a defective opinion” in the
original expert report, but was intended to impeach testimony given by Plaintiff’s expert.
Priester does not argue that Ebersole and Eckhardt’s initial opinions were
somehow incomplete or incorrect, but instead that the new affidavits were offered as
Eckhardt and Ebersole’s “attempt[t] to address the instances in Defendants’ summary
judgment memoranda where their respective testimony and opinions had been
misconstrued” in an effort to “clarify a number of instances where the Defendants had
cited [their] testimony and conclusions in a misleading fashion.” ECF No. 94 at 3.
However, to accept this expansive interpretation of “supplementation” would lead to the
type of impermissible bolstering of expert opinions that was rejected by the Akeva and
Palmetto Pharmaceuticals courts. The court refuses to do so.
The Eastern District of North Carolina confronted a similar scenario in Gallagher
v. S. Source Packaging, LLC, 568 F. Supp. 2d 624 (E.D.N.C. 2008), where a putative
buyer of a liquidation trust for a packaging company filed a supplemental report to
States, 221 F.R.D. 696, 701 (D.N.M. 2003) (“[Rule 26(e) ] does not give license to
sandbag one's opponent with claims and issues which should have been included in the
expert witness’ report . . .” (quotation omitted)); Coles v. Perry, 217 F.R.D. 1, 3 (D.D.C.
2003) (“[Rule] 26(e) does not grant a license to supplement a previously filed expert
report because a party wants to . . .”); Reid v. Lockheed Martin Aeronautics Co., 205
F.R.D. 655, 662 (N.D. Ga. 2001) (“In short, Rule 26 imposes a duty on Plaintiffs; it
grants them no right to produce information in a belated fashion.” (emphasis in original)).
13

address numerous problems in the initial report that the trustee discussed in moving for
summary judgment. The Gallagher court rejected proferred expert report as improper
supplementation under Rule 26. Id. at 631. Here, both Ebersole and Eckhardt’s
affidavits begin with the statement “I have prepared this affidavit in response to
[Futuramic and Capital Welding’s summary judgment motions].” ECF No. 94, Ex. 5,
Eckhardt Aff. ¶ 6; ECF No. 94, Ex. 6, Ebersole Aff. ¶ 7. Ebersole opines that Futuramic
was a “contributing cause to the fatality” and that the modifications made by SAR to the
logic of Cell 90 were foreseeable. Ebersole Aff. ¶¶ 21, 26. This is not a correction of an
inadvertent error in his Rule 26 report or an addition of information that was not available
to him at the time of his Rule 26 report. It is certainly not a mere “clarification” of prior
testimony as Priester argues. ECF No. 94 at 9. Instead, it is an attempt for Ebersole to
amend his Rule 26 report. Ebersole may have intended his affidavit to clarify that the
finding in his Rule 26 report that “[t]he control system failed to successfully move [Slider
#2] to a safe position and this was a cause of Mr. Priester’s fatality” implicates
Futuramic’s actions as a contributing cause because of Futuramic’s role in delivering Cell
90 with an incomplete control system. Courts have repeatedly ruled that parties may not
avoid summary judgment by “supplementing” an expert report with this type of “new and
improved” expert report. See, e.g., MicroStrategy, Inc. v. Business Objects, S.A., 429
F.3d 1344, 1353 (Fed. Cir. 2005); Solaia Tech., LLC v. ArvinMeritor, Inc., 361
F.Supp.2d 797, 806 (N.D. Ill. 2005) (“It would appear that Nuschke’s much expanded
opinion was prompted solely by ArvinMeritor’s summary judgment motion . . . . This is
not the proper role for supplementation of a report by an expert.”); Beller, 221 F.R.D. at
701 (“To rule otherwise would create a system where preliminary reports could be
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followed by supplementary reports and there would be no finality to expert reports, as
each side, in order to buttress its case or position, could ‘supplement’ existing reports and
modify opinions previously given.”). Given that both Eckhardt and Ebersole’s affidavits
begin with the explicit statement that the affidavit “was prepared in response” to
Futuramic and Capital Welding’s summary judgment motion, the court finds that the
affidavits were intended to function as exactly the type of “new and improved” expert
report that courts have rejected under Rule 26.
Rule 37(c)(1) allows for evidence to be admitted even when the party seeking to
offer evidence has failed to properly disclose: (1) when the failure to disclose is
“substantial[ly] justif[ied],” and (2) when the nondisclosure is “harmless.” See S. States
Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595–96 (4th Cir. 2003).
In determining whether nondisclosure of evidence is substantially justified or harmless,
the court looks to
“(1) the surprise to the party against whom the witness was to have
testified; (2) the ability of the party to cure that surprise; (3) the extent to
which allowing the testimony would disrupt the trial; (4) the explanation
for the party’s failure to name the witness before trial; and (5) the
importance of the testimony.”
Id. (internal citations omitted). Priester contends that “even assuming” Ebersole and
Eckhardt’s affidavits exceed the scope of their previously disclosed opinions, Futuramic
will be able to cure any putative prejudice at trial through cross-examination. ECF No.
94 at 25. However, to find that supplementation is “harmless” under Rule 37(c)(1)
because a witness can be cross-examined at trial would undercut the purpose of Rule
26(e)(1) altogether—under this theory, a party opposing supplementation could never be
prejudiced by improper new expert opinions because the expert could be cross-examined
15

about those opinions at trial. The court refuses to apply such a liberal view of Rule
37(c)(1) here. The court finds that since Ebersole and Eckhardt’s affidavits do not
correct inaccuracies or add information that was unavailable at the time of the initial Rule
26 report, and the exclusions in Rule 37(c)(1) are inapplicable, the affidavits constitute
improper supplementation under Rule 26.7 Since the court finds that the affidavits are
not supplemental reports under Rule 26, they constitute untimely disclosed opinions and
are barred.

7

In the response, Priester argues that Futuramic has asserted “in essence, that both
documents in question are so-called ‘sham affidavits’” and then delves into a lengthy
discussion of the heavy legal burden that Futuramic bears to exclude an affidavit under
the sham affidavit rule and how this burden has not been met. ECF No. 94 at 7. Since
Futuramic never mentions or applies the sham affidavit rule in the briefing for this
motion, it is unclear why Priester brings it up at all. In any case, the court finds that the
affidavits are struck under Rule 26, which is an independent basis to strike.
Priester also argues that Futuramic misconstrues Ebersole’s testimony on
Futuramic’s role in Mr. Priester’s accident, and that Futuramic should have asked
Ebersole whether he had any opinions related to Futuramic. However, it is Priester’s
duty to produce a written expert report containing a “complete statement of all opinions”
that experts will testify to. See Palmetto Pharm., 2012 WL 4369529, at *2 (“A party’s
failure to disclose in accordance with Rule 26 cannot be considered ‘justified’ or
‘harmless’ simply because the opposing party had an opportunity to depose the
witness.”).
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IV. CONCLUSION
For the reasons set forth above, the court grants Futuramic’s Motion to Strike or
Exclude the Affidavits of Ebersole and Eckhardt and denies SAR’s Motion to Exclude
Ebersole.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 18, 2017
Charleston, South Carolina

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