Avneri v. Hartford Fire Insurance Company

Filing 34

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Hartford's Motion to Exclude, or in the Alternative, Limit Testimony from Plaintiff's Expert Witness Scope Ready, LLC (Dkt. 16 ) is hereby DENIED. It is further ORDERED that Pl aintiff's Opposed Motion for Leave to Amend Designation of Expert Witnesses (Dkt. 22 ) is hereby DENIED. It is further ORDERED that Avneri produce a report that complies with Federal Rule of Civil Procedure 26(a)(2)(B) for Julie Needham within thirty (30) days. Signed by Judge Amos L. Mazzant, III on 10/10/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

YORAM AVNERI
v.
HARTFORD FIRE INSURANCE
COMPANY

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Civil Action No. 4:16-CV-00917
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Hartford Fire Insurance Company’s Motion to
Exclude, or in the Alternative, Limit Testimony from Julie Needham of Scope Ready, LLC (Dkt.
#16) and Plaintiff Yoram Avneri’s Opposed Motion for Leave to Amend Designation of Expert
Witnesses (Dkt. #22). After reviewing the motions, the Court denies both motions.
BACKGROUND
This case arises from an insurance dispute in which Yoram Avneri (“Avneri”) seeks full
recovery for roof damage of his commercial property from Hartford Fire Insurance Company
(“Hartford”) after a hail event occurring in April 2016 (Dkt. #16).
Avneri initially filed the claim in Denton County on October 18, 2016 (Dkt. #2). Hartford
removed the case to the Eastern District of Texas, Sherman Division, on November 30, 2016
(Dkt. #1).
On February 3, 2017, the Court entered a Scheduling Order (Dkt. #13). The Scheduling
Order established April 5, 2017, as the deadline for Avneri’s disclosure of expert testimony; April
19, 2017, for Avneri to file amended pleadings; and May 3, 2017, for Hartford’s disclosure of
expert testimony (Dkt. #13). According to the Scheduling Order, Hartford had until May 17, 2017,
to object to any other party’s expert witnesses (Dkt. #13). On April 5, 2017, Avneri filed its

Designation of Expert Witnesses (Dkt. #14). Avneri designated Julie Needham (“Needham”) as
an expert witness and James M. McClenny as a testifying witness. Both of these witnesses were
classified as “Plaintiff’s Retained Experts.” With the designation, Avneri attached Needham’s
resume, but did not include Needham’s opinions, facts, exhibits, a list of Needham’s publications,
or past cases.
On May 16, 2017, Hartford filed a Motion to Exclude Testimony from Julie Needham,
claiming the disclosure did not satisfy the requirements under Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure (Dkt. #16). Avneri filed a Response on May 31, 2017 arguing its
disclosure met Rule 26(a) requirements because Needham was a non-retained expert (Dkt. #21).
Further, Avneri proclaimed Needham’s designation did not prejudice Hartford (Dkt. #21).
Hartford replied to Avneri’s response on June 7, 2017 pointing out that Avneri’s initial designation
classified Needham as a retained witness (Dkt. #24).
On June 5, 2017, Avneri filed a Motion for Leave to Amend Designation of Expert
Witnesses after becoming “aware that its Designation of Expert Witnesses was incomplete” (Dkt.
#22).1 In the amended designation, Avneri seeks to include an additional expert witness, Greg
Becker (“Becker”). Becker inspected the commercial property on May 30, 2017—almost two
months after Avneri’s deadline for identifying witnesses. Avneri explained in the motion that
Becker’s report would “be supplemented as soon as it is completed and provided to [Avneri].”
Avneri included in its motion for leave an amended expert designation, which included a
description of Becker’s proposed testimony, resume, previous cases, and compensation schedule
(Dkt. #22, Exhibit 2). On August 11, 2017, Avneri filed a notice of his supplemental witness

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Avneri mistakenly filed this motion on May 30, 2017 as “unopposed.” After Hartford contacted both the Court and
Avneri, the motion was disregarded and “filed in error by attorney.”

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designation (Dkt. #30). In this supplemental designation, Avneri represented that he produced
Becker’s report.
LEGAL STANDARD
An expert report must be “detailed and complete . . . to avoid the disclosure of ‘sketchy
and vague’ expert information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d
546, 571 (5th Cir. 1996). To eliminate unfair surprise, Rule 26(a)(2)(B) requires that a disclosure
of retained expert witnesses is accompanied with a report that is written and prepared by the
witness. FED. R. CIV. P. 26(a)(2)(B). This report must include: (1) a statement of all opinions the
witness will express and the reasons for them; (2) the facts considered in forming the opinions,
(3) exhibits that support them; (4) the witness’s qualifications and list of publications the witness
authored in the last ten years; (5) a list of all other cases in which the witness was an expert for the
last four years; and (6) and a statement of compensation. Id.
The requirements for non-retained witnesses are more lenient. It requires a statement of
the subject matter and a summary of the expected facts and opinions of which the expert will
testify. Id. 26(a)(C)(i)–(ii). Any necessary supplementation to an expert report must be disclosed
according to the deadlines set out in the Scheduling Order. Id. 26(e)(2). If a party fails to identify
a witness or provide information, “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 failure was substantially justified
or is harmless.” Id. 37(c)(1).
ANALYSIS
Hartford asks the Court to exclude Needham’s testimony, or, at a minimum, limit
Needham’s testimony to only the subject matter of repairs in the estimate, without regard to

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causation. Avneri moves for leave to amend the designation of expert witnesses to add Becker.
The Court addresses each motion in turn.
A. Hartford’s Motion to Exclude, or in the Alternative, Limit Testimony
The first question before the court is whether Needham’s testimony meets the requirements
of Rule 26(a)(2). Hartford argues Avneri’s designation for retained experts is insufficient because
Needham’s designation does not contain: (a) the complete statement of all opinions the witness
will express and the basis and reasons for them; (b) the facts or data considered by the witness in
forming them; and (c) any exhibits that will be used to summarize or support them. See FED. R.
CIV. P. 26(a)(2)(B)(i)–(iii). The Court agrees.
Avneri’s disclosure does not meet the requirements of Rule 26. Avneri did not include a
record of Needham’s compensation, past instances of testimony, or any facts or opinions that
Needham will testify. Moreover, there is no indication on the unsigned repair estimate that
Needham authored it. The estimate’s only indication of authorship is that it is “Plaintiff’s Scope
Ready, LLC Expert Estimate.” Avneri argues Needham is a non-retained witness because she was
not “specially employed as a witness for the sole purpose of litigation.”2 Under Avneri’s original
designation, however, Needham is listed under “Plaintiff’s Retained Experts” which Hartford uses
to demonstrate that the disclosure must meet the requirements for retained experts.
Hartford argues that even if the Court considers Needham as a non-retained expert, the
disclosure remains insufficient. Non-retained experts are not required to provide a report, but Rule
26 requires a summary of the facts and opinions on which the non-retained expert will testify. FED.

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Avneri’s contention that Needham was not retained is meritless. Besides stating the standard for determining whether
an expert is retained, Avneri, in a conclusory manner, states that Needham “was not retained or specially employed.”
Needham is employed by a third-party and Avneri does not provide any indication that Needham has firsthand
knowledge of the events giving rise to the action. Thus, Avneri’s contention is without merit. Nevertheless, the Court
finds that Needham’s report is insufficient under the standard for non-retained experts.

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R. CIV. P. 26(a)(2)(C)(ii). The only attached documents with Avneri’s original designation are
Needham’s resume and the repair estimate. Avneri simply explains Needham’s anticipated
testimony includes the hailstorm’s effect on the property and the structural damage resulting from
the storm, but offers no statement as to which facts and opinions Needham will use. When a party
fails to provide a meaningful “summary of the facts and opinions” forming the basis of a testimony,
the disclosure is insufficient. Motio, Inc. v. BSP Software LLC, No. 4:12-CV-647, 2016 WL
74425, at *2 (E.D. Tex. Jan. 6, 2016). Because Avneri failed to provide a summary of the facts
and opinions Needham is expected to use in her testimony, the disclosure is insufficient under
either the retained or non-retained witness standard.
Having found the disclosure insufficient, the Court must determine the appropriate remedy.
In determining whether to exclude an untimely designated witness, courts balance four factors:
(1) the explanation for failure to identify the witness; (2) the importance of the testimony;
(3) potential prejudice in allowing testimony; and (4) the availability of a continuance to cure such
prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Based on these factors,
the Court finds excluding Needham’s testimony is improper.
Under the first factor, the Court must consider Avneri’s explanation for the failure to
identify Needham properly. Avneri did not attempt to explain or even supplement the insufficient
disclosure. Avneri explains that because Needham is a non-retained witness, Avneri does not need
to produce a report. Hartford points out, however, that Avneri provides no explanation for the
improper designation of Needham even if she is a non-retained witness. Considering Avneri has
no significant justification for the insufficient disclosure, this factor favors exclusion of Needham’s
testimony.

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The second factor examines the importance of Needham’s testimony to the case. Avneri
argues that without the testimony of both Needham and Becker, Avneri cannot prove causation
and damages. Hartford recognizes that Needham’s opinions are essential to Avneri’s claims.
While the repair estimate is vague, it is reasonable to assume that Needham did author it because
Needham is employed by Scope Ready, LLC. Because of the importance of this testimony to
Avneri’s case, this factor favors admission. See Betzel v. State Farm Lloyds, 480 F.3d 704, 707–
08 (5th Cir. 2007).
Under the third factor, the Court must consider whether Avneri’s improper designation
prejudices Hartford. Needham has not produced any statement regarding “causation, origin, or
age of the alleged damage” and Hartford argues it will be “severely prejudiced” if Avneri later
supplements the testimony with causation statements. Avneri argues that Hartford seeks to win
the case with “procedural gamesmanship” because Hartford waited nine months to complain about
Needham’s designation without attempting to depose her before moving to exclude her opinion.
According to Avneri, Hartford will not suffer any unfair prejudice or surprise because “the bulk of
[Needham’s] anticipated testimony is contained in the long-produced estimate of damages.”
Because Hartford will not have the opportunity to analyze how Needham reached her conclusions,
this factor slightly weighs in favor of excluding Needham’s testimony.
Finally, the Court considers the availability of a continuance to cure any prejudice. A
continuance is the “preferred means of dealing with a party’s attempt to designate a witness out of
time.” Bradley v. U.S., 866 F.2d 120, 127 n.11 (5th Cir. 1989). Excluding Needham’s testimony
would be a serious sanction for an improper designation. With a continuance, Avneri may
supplement the original disclosure with the missing information required by Rule 26 and Hartford
may then depose Needham. As such, the prejudice against Hartford is cured by a deposition once

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Avneri produces a sufficient disclosure.

Hartford argues they are prejudiced even with a

continuance because the deadline to refute Needham’s undisclosed opinions would have passed
by the time they depose her. See Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., No. 3:04CV-1866-D, 2006 WL 2506957, at *4 (N.D. Tex. Aug. 15, 2006). Trial is scheduled to be set in
the Court’s January 8, 2018–February 2, 2018 trial window. The Court has broad discretion to
balance the Court’s interest in efficiency with a party’s interest in expert testimony.

See

Geiserman, 893 F.2d at 791. An extension of discovery so that Needham can produce a sufficient
report and Hartford may depose her is sufficient to resolve any prejudice. See Payne v. Brayton,
No. 4:15-CV-00809, 2017 WL 194210, at *4 (E.D. Tex. Jan 18, 2017). Because the prejudice can
be cured by a continuance, the fourth factor strongly favors admission of Needham’s testimony
and report.
The factors favor admission of Needham’s testimony. Once Avneri provides a sufficient
disclosure under Rule 26, Hartford can depose Needham to understand the previously undisclosed
opinions. As such, Avneri must produce a report that is in full compliance with Rule 26(a)(2)(B)
within thirty days of this order.
B. Avneri’s Opposed Motion for Leave to Amend Designation of Expert Witnesses
The second question for the Court is whether to permit Avneri’s amended designation of
expert witnesses. Avneri argues the Court should grant the motion for leave because the late
designation of Becker was “substantially justified” or “harmless.” Hartford claims the Court
should deny Avneri’s motion because the four factors weigh against Avneri and the proposed
designation of Becker is insufficient.
Under the first factor, the Court considers Avneri’s explanation for Becker’s late
designation. “[E]xclusion of expert witnesses is particularly appropriate where the party has failed

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to provide an adequate explanation for their failure to identify their expert within the designated
timetable.” Betzel, 480 F.3d at 707. Avneri’s only explanation for the late designation is Becker’s
unavailability to inspect the property until May 30, 2017—nearly two months after the deadline
for Avneri’s designation of expert witnesses. In filing the Motion for Leave, Avneri simply stated,
“Plaintiff is now aware that its Designation of Expert Witnesses was incomplete” (Dkt. #22).
However, becoming “aware” of such incompleteness does not stand as a sufficient explanation for
the failure to identify Becker. In addition, in the motion for leave, Avneri failed to provide an
expected date of completion of Becker’s report.3 Because Avneri provided little to no reason for
the late designation of Becker, this factor favors denial of the motion.
Under the second factor, the Court considers the importance of Becker’s testimony.
Becker’s opinions address causation, which is a contested issue in this case. Hartford argues that
if it were true that Becker could not inspect the property until almost two months after the
designation deadline, then Avneri should have notified the Court before the deadline passed. The
more significant an expert’s testimony, “more the reason to be sure its introduction was properly
grounded.” Geiserman, 893 F.2d at 791. Thus, more weight should be given to this factor in favor
of allowing late designation. See Betzel, 480 F.3d at 708. However, “the importance of such
proposed testimony cannot singularly override the enforcement of local rules and scheduling
orders.” Id. (quoting Barrett v. Atl. Richfield Co., 95 F.3d 375, 381 (5th Cir. 1996)). In the case
at hand, the overall necessity of Becker’s testimony favors granting leave.
Under the third factor, the Court analyzes any potential prejudice against Hartford for
permitting the late designation of Becker as a witness. A party suffers prejudice if an expert report
is produced late because the party missed the opportunity to designate rebuttal witnesses. Young

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On August 11, 2017, Avneri gave notice of Becker’s report (Dkt. #30). The Court discusses this under the third
factor.

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v. Brand Scaffold Servs., LLC, No. 1:07-CV-917, 2009 WL 4674050, at *5 (E.D. Tex. Feb. 24,
2009). Hartford contends that it would not have the opportunity to designate its own rebuttal
experts if the motion for leave is granted. By the time Avneri filed the motion for leave to amend,
Hartford’s deadline to challenge Avneri’s experts had expired. On August 11, 2017, Avneri
produced Becker’s 200-page engineering report. Considering the length and complexity of
Becker’s report, Hartford would suffer significant prejudice in rebutting Becker’s analysis if the
Court permitted the late designation. Thus, this factor weighs against Avneri’s request.
Lastly, the Court considers whether a continuance cures any prejudice to Hartford.
Hartford already filed its motion for summary judgment on the July 28, 2017 deadline (Dkt. #29).
The discovery deadline was September 1, 2017, and trial is scheduled for the Court’s January 8,
2018–February 2, 2018 trial window. Hartford contends that a continuance will not cure the
prejudice because even if it could depose Becker, the deadline for designating rebuttal witnesses
has already passed. Further, Hartford argues a continuance “disrupts” the current Scheduling
Order and “rewards [Avneri] for its dereliction of the Court’s procedures and the Federal Rules of
Civil Procedure” (Dkt. #26). Although a continuance allows counsel to conduct new discovery, it
results “in additional delay and increase[s] the expense of defending the lawsuit.” Geiserman,
893 F.2d at 792. Moreover, a continuance delays trial and the resolution of this case. Litigation
efficiency and deadline adherence is “critical to restoring integrity in court proceedings.” Id.
Although a continuance is the preferred resolution of late designation, the late designation of
Becker and even later filing of his report favors denial of the motion.
Even though Becker’s testimony is important to Avneri’s case, that factor, without more,
does not outweigh the other factors that favor denying the motion for leave to amend.

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Considering that “the trial court has latitude to control discovery abuses and cure prejudice
by excluding improperly designated evidence,” both Hartford’s motion to exclude and Avneri’s
motion for leave to amend are denied. Id. at 791. It would amount to an extreme sanction to
exclude both Needham and Becker’s testimonies. Since Avneri designated Needham, although
improperly, within the Scheduling Order established by the Court, Needham’s testimony is not
excluded. On the other hand, since Avneri designated Becker two months after the deadline for
expert witness designation and produced Becker’s report after the dispositive motion deadline and
less than one month before the close of discovery, the Court refuses to allow such an untimely
designation. For these reasons, both motions are denied.
CONCLUSION
It is therefore ORDERED that Hartford’s Motion to Exclude, or in the Alternative, Limit
Testimony from Plaintiff’s Expert Witness Scope Ready, LLC (Dkt. #16) is hereby DENIED.
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It is further ORDERED that Plaintiff’s Opposed Motion for Leave to Amend Designation
of Expert Witnesses (Dkt. #22) is hereby DENIED.
It is further ORDERED that Avneri produce a report that complies with Federal Rule of
Civil Procedure 26(a)(2)(B) for Julie Needham within thirty (30) days.
SIGNED this 10th day of October, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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