Overbeck v. Envoy Air, Inc.

Filing 65

Memorandum Opinion and Order denying 36 Defendant's Motion and Brief to Strike Plaintiff's Expert Designation of Shelley P. Dobmeier. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 8/29/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ERNEST OVERBECK,
Plaintiff,
v.
ENVOY AIR, INC.,
Defendant.

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§ Civil Action No. 3:15-CV-3036-BH
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§ Consent Case

MEMORANDUM OPINION AND ORDER
By order filed July 10, 2017, this matter has been transferred for the conduct of all further
proceedings and the entry of judgment. Before the Court is Defendant’s Motion and Brief to Strike
Plaintiff’s Expert Designation of Shelley P. Dobmeier, filed February 22, 2017 (doc. 36). Based on
the relevant filings, evidence, and applicable law, the defendant’s motion is DENIED.
I. BACKGROUND
Ernest Overbeck (Plaintiff) sues his former employer, Envoy Air, Inc. (Defendant), alleging
that it terminated his employment because he was 62 years old. (doc. 17.) He seeks declaratory relief,
injunctive relief, lost wages, liquidated damages, attorney’s fees, and expenses. (Id. at 5.)
On January 3, 2017, Plaintiff timely filed a designation of his expert witnesses in accordance
with the original scheduling order entered in this suit. (docs. 32, 35.) It designated Ms. Shelley P.
Dobmeier (Dobmeier) as an expert on “human resource practices” to testify broadly on the proper and
necessary training for “executives and managers in recognizing, preventing, and protecting employees
from discrimination,” including age discrimination. (doc. 35 at 3.) The designation also cited to
specific congressional findings in the United States Code and surveys from the “Society of Human
Resources Management” and the “National Business Ethics” group that Dobmeier relied upon. (Id.
at 3-4.) Plaintiff, however, did not include Dobmeier’s signed report or her qualifications. (See id.)

Over a month later, on February 21, 2017, Defendant notified Plaintiff that he had failed to
provide Dobmeier’s signed expert report or curriculum vitae as required under Federal Rule of Civil
Procedure 26(a)(2). (doc. 36 at 2.) Plaintiff responded that this omission was an inadvertent oversight
and immediately provided a signed copy of the report and Dobmeier’s curriculum vitae that same day.1
(Id. at 2-3.) The signed report states that Dobmeier was retained to give her expert opinion on the
“proper human resource polices and practices” regarding age discrimination and how “employers
should train executives and managers in recognizing, preventing, and protecting employees from
discrimination.” (doc. 36-1 at 2-3.) It also cites to the congressional findings and surveys used to form
her opinion, identifies the other cases in which she has testified, and includes a statement of her
compensation. (Id. at 3.)
Defendant then moved to strike the expert report, alleging that it is deficient and untimely. (Id.)
On the same day that Plaintiff filed his response to the motion, the parties filed a joint motion for
continuance in part because “significant discovery still need[ed] to be completed.” (doc. 37.) This
motion was granted, and the deadline for completion of discovery was extended from April 3, 2017,
to July 3, 2017. (docs. 32, 39.) On July 12, 2017, both parties again filed a joint motion to extend
deadlines under the scheduling order because “[a]lthough the parties have worked diligently to
complete expansive discovery, counsel for the parties agree that additional discovery remains to be
taken.” (doc. 55.) This motion was also granted, and the deadline for completion of discovery was
further extended to September 18, 2017. (doc. 64.)
With a timely filed response and reply, Defendant’s motion to strike Dobmeier for failure to
comply with Rule 26(a)(2) is ripe for determination. (docs. 38, 40.)
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Defendant also notified Plaintiff that he failed to provide a list of Dobmeier’s publications over the last 10
years, but Plaintiff clarified that she does not have any publications. (docs. 36 at 2-3, 38 at 3.)

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II. MOTION TO STRIKE
Defendant argues that Dobmeier’s designation as an expert should be stricken because
Plaintiff’s expert disclosure was deficient and untimely under Rule 26(a)(2). (doc. 36 at 3-5.)
A.

Expert Disclosure
Under Federal Rule of Civil Procedure 26(a)(2)(B), a party who retains an expert to provide

expert testimony in a case must submit a report that includes: (1) a complete statement of all opinions
of the witness and the reasons for them; (2) the facts or data the expert considered in forming his
opinion; (3) any exhibits that will be used; (4) the witness’s qualifications, including publications; (5)
a list of all other cases in which he has testified in the previous four years; and (6) a statement of his
compensation in the present case. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). If for some reason the witness
is not required to provide such a report, Rule 26(a)(2)(C) nevertheless requires a party to disclose: (1)
the subject matter on which the witness is expected to present evidence, and (2) a summary of the facts
and opinions to which the witness is expected to testify. Id. at (a)(2)(C). If a party fails to provide
information as required under Rule 26(a), he may not 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.” Fed. R. Civ. P. 37(c)(1).
Both parties agree that Plaintiff’s initial expert designation of Dobmeier was deficient and
untimely based on the failure to submit a copy of her signed report and curriculum vitae outlining her
credentials as required under Rule 26(a)(2). (docs. 36, 38.) Under Rule 37(c)(1), however, the expert
designation should not be stricken if Plaintiff’s violation of Rule 26(a)(2) “was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1).

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B.

Harm2
Defendant argues that Plaintiff’s untimeliness caused prejudice because it now has “limited

remaining time to complete discovery,” and because Dobmeier’s testimony is not important to
Plaintiff’s case. (doc. 36 at 4-5.)
“A district court considers four factors when determining if such a violation is harmless: (1)
the explanation, if any, for the non-disclosing party’s failure to comply with the discovery rule; (2)
the prejudice to the opposing party; (3) the possibility of curing such a prejudice by granting a
continuance; and (4) the importance of the evidence and related witnesses’ testimony.” Reyes v. City
of Farmers Branch, Texas, No. 3:07–CV–900–O, 2008 WL 4791498, at *3 (N.D. Tex. Nov. 4, 2008)
(citing Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996)). “The Court has broad
discretion in deciding whether a violation of Rule 26(a) is substantially justified or harmless.” Id.
(citing United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir.1998)).
Under the first factor, Plaintiff did not offer a suitable explanation for his omission; he only
states that he “inadvertently failed to send” the required documents. See Lofton v. McNeil Consumer
& Specialty Pharm., No. 3:05-CV-1531-L-BH, 2008 WL 4878066, at *10 (N.D. Tex. July 25, 2008).
Regarding the second and third factors, Defendant argues that it stands to suffer prejudice “as the
parties have limited remaining time to complete discovery.” (doc. 36 at 5.) Prior to the filing of this
motion, Plaintiff provided Defendant with Dobmeier’s signed report and curriculum vitae, which
contains all necessary requirements under Rule 26, including a complete statement of her expert
opinions on “proper human resources policies and practices” as to age discrimination; the data and

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Plaintiff does not attempt to offer any “substantial justifications” for his omission, so only the harm caused
by Plaintiff’s violation will be considered. See Lofton, 2008 WL 4878066, at *10.

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surveys that Dobmeier relied upon; her qualifications; a list of all other cases in which she has testified
in the previous four years; and a statement of her compensation in the present case.3 See Fed. R. Civ.
P. 26(a)(2)(B)(i)-(vi). Since the filing of the motion to strike, the discovery deadline has been
extended twice, which has provided Defendant with nearly six additional months to depose Dobmeier
or propound additional discovery. (See docs. 32, 39, 64.) As for the fourth factor, Defendant argues
that Dobmeier’s testimony is not important because she “merely holds general opinions on the broad
societal and economic problems of discrimination in America.” (doc. 36 at 4-5.) Her testimony,
however, appears at this stage of the litigation to be important as it concerns Plaintiff’s allegations of
willful age discrimination because it helps the trier of fact understand the general human resources
policies, procedures, and the standard of care required of an employer with older employees. (See doc.
17 at 2-5.)
Based on the four factors, the Court finds that Plaintiff’s violation of Rule 26(a)(2) was
harmless, and Dobmeier’s designation as an expert in this case should not be stricken. See Chik-Kin
v. Axis Surplus Ins. Co., No. 3:13-CV-2804-N, 2015 WL 3466723, at *2 (N.D. Tex. Jan. 21, 2015)
(denying motion to strike an expert for failing to provide an expert report because “the continuance
that [the court] granted on November 21, 2014 can cure much of this prejudice”).
III. CONCLUSION
Defendant’s motion to strike (doc. 36) is DENIED.

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On page 4 of its motion, Defendant cites to one court opinion excluding expert testimony under the standard
identified in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). (doc. 36 at 4) (citing Texokan Operating,
Inc. v. Hess Corp., 89 F. Supp. 3d 903 (S. D. Tex. 2015)). Defendant, however, does not cite to Daubert in its motion
or argue that Plaintiff’s expert should be excluded as unreliable or irrelevant under Daubert. (See doc. 36.)

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SO ORDERED this 29th day of August, 2017.

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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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