Calhoun v. Schindler Elevator Corporation

Filing 33

MEMORANDUM AND ORDER entered: The court offers Calhoun a final opportunity to address the failure, consistent with the factors discussed in Hamburger and Harmon. No later than December 7, 2012, Calhoun must supplement her response to the motion to strike to address these factors. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ELSIE CALHOUN,

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Plaintiff,
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v.
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SCHINDLER ELEVATOR CORPORATION, §
et al.,
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Defendants.
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CIVIL ACTION NO. H-10-3997

MEMORANDUM AND ORDER
The defendants’ motion to strike plaintiff Elsie Calhoun’s expert, Dr. Bruce Pinkston, is
presently before this court. (Docket Entry No. 26). Calhoun objected to the motion to strike.
(Docket Entry No. 27). Hyatt Corp. and the Schindler Elevator Co. replied. (Docket Entry No. 28).
On October 16, 2012, this court issued a Memorandum and Order instructing Calhoun to supplement
her opposition to the motion to strike. (Docket Entry No. 29). In essence, because the expert report
Pinkston submitted failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), this court
determined that Calhoun had not properly designated Pinkston. (Id. at 4). Because exclusion of an
improperly designated expert is an appropriate sanction under these circumstances, this court
granted Calhoun the opportunity to explain the noncompliance and why Pinkston should not be
excluded:
Although the report fails to satisfy the Rule 26 requirements, the defendants’ motion
does not address the factors the Fifth Circuit has identified as relevant to determining
whether to strike an expert because the Rule 26 designation is improper. A court
considers four factors: “(1) the explanation for the failure to identify the witness; (2)
the importance of the testimony; (3) potential prejudice in allowing the testimony;
and (4) the availability of a continuance to cure such prejudice.” Hamburger v. State
Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v.

MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). No later than November 2, 2012,
the plaintiff must supplement her response to the motion to strike to address these
factors.
(Id. at 4–5 (emphasis in original)).
This court has received a supplemented response from Calhoun, (Docket Entry No. 30), and
a reply to that supplemented response from the defendants, (Docket Entry No. 31). The court has
now reviewed both documents. Neither adequately responds to this court’s concern that the
designation of Pinkston as a testifying expert does not comply with Rule 26 because there is no
timely, sufficient report. Some additional clarification might be useful.
In her supplemental response, Calhoun attempted to address the Hamburger factors listed
above. She argued that although Pinkston’s report was insufficient, Pinkston’s name was revealed
to the defendants as a testifying witness within the scheduling order deadlines. Calhoun argued that
in this case, “[u]nlike Hamburger cited above, a scheduling order deadline set by this court has not
been abused. . . . Dr. Pinkston was properly identified and designated in accordance with the
scheduling order set out in this court, and there was no surprise to the Defendants with respect to
his designation as an expert witness.” (Docket Entry No. 30, ¶¶ 4–5). Calhoun argued that
Pinkston’s testimony, particularly the testimony about escalator maintenance, is critical to her
personal-injury case. (Id., ¶ 6). Calhoun argued that the defendants would not be prejudiced by this
court’s denial of the motion to strike because Pinkston could supplement his report without delaying
the pretrial schedule and no continuance would be required if Pinkston was allowed to supplement
his report to make it sufficient under Rule 26. (Id., ¶¶ 7–11).
The defendants replied by arguing that the Hamburger factors were inapplicable:
[T]he Hamburger factors do not apply to the situation involving Plaintiff’s
expert in this case. In Hamburger, the issue was that the plaintiff failed to timely
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designate her expert by almost three months, and the defendant moved to exclude the
expert on this basis. The trial court excluded the expert and the appellate court
upheld it. The Fifth Circuit stated in Hamburger:
The Court reviews the trial court’s exercise of its discretion to
exclude experts not properly designated by considering four factors:
(1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such
prejudice.
In its Memorandum and Order dated October 6, 2012, this court stated that
the above factors were identified by the Fifth Circuit as being “relevant to
determining whether to strike an expert because the Rule 26 designation is
improper,” and Plaintiff repeats this language in paragraph 3 of her supplemental
response to the Motion. However, this mischaracterizes the language in Hamburger
cited above. The Hamburger court was solely concerned with the untimely
designation of the plaintiff’s expert, and the four factors prescribed are solely geared
toward addressing that issue — an issue not present in this case.
(Docket Entry No. 31, at 2 (emphasis in original) (citing and quoting 361 F.3d at 379, 883)).
The defendants are correct that the problem here was not a failure to identify the expert at
all, as in Hamburger. But Calhoun’s failure to provide an adequate expert report under Rule 26 is
viewed under the case law as a failure to designate as required by that Rule. Fifth Circuit case law
makes clear that what this court may have termed the “Hamburger factors” are neither exclusive to
that case nor limited to a failure to timely identify an expert:
Having concluded that the district court properly determined that the original report
failed to comply with the scheduling order and that Appellants’ efforts to supplement
the report were untimely, we must determine whether the district court’s sanction of
excluding the expert’s testimony was proper. . . . [W]e consider four factors: “(1) the
importance of the excluded testimony, (2) the explanation of the party for its failure
to comply with the court’s order, (3) the potential prejudice that would arise from
allowing the testimony, and (4) the availability of a continuance to cure such
prejudice.”

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Harmon v. Ga. Gulf Lake Charles L.L.C., 476 F. App’x 31, 36 (5th Cir. 2012) (quoting EEOC v.
Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993) (citing Geiserman v. MacDonald, 893 F.2d
787, 791 (5th Cir. 1990))).
These factors mirror those set forth in Hamburger. This court cited Harmon in its previous
order, (Docket Entry No. 29, at 3–4), and the Hamburger court’s citation of Geiserman, in framing
the relevant considerations when a party fails to properly and timely designate an expert, (id. at 4–5).
If these cases failed to clarify that the considerations listed in Hamburger are not limited to the facts
of that case, then the present Memorandum and Order serves that purpose.
Under this court’s Scheduling and Docket Control Order, Calhoun was to designate her
experts and provide the Rule 26(a)(2) report by September 16, 2011; the defendants would do the
same by October 28, 2011. (Docket Entry No. 14). Pinkston was apparently first identified to the
defendants in October 2011, along with the first expert report that lacked any informative description
of his opinions or their basis. (Docket Entry No. 22).
Defense counsel claims that he warned counsel for Calhoun on June 19, 2012 that a motion
to strike Pinkston’s testimony would be filed, (Docket Entry No. 28, at 2), in large part because
Pinkston’s report “did not set out or follow any defined principles or methods of testing and analysis,
and his opinions are simply conclusory statements, unconnected to the facts of this case by anything
more than his ipse dixit,” (Docket Entry No. 26, at 3). Calhoun’s counsel responded that a
supplemental report was forthcoming. (Docket Entry No. 28, at 1–2). Pinkston supplemented his
report on June 29, 2012, but the supplementation still provided no additional description of his
opinions or their basis. (See Docket Entry No. 26, Ex. B). Hyatt then moved to strike Pinkston.

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(Docket Entry No. 26). The entirety of the final “Basis of Report” submitted by Pinkston is as
follows:
1. We reviewed the deposition testimony of Ms. Elsie Calhoun.
2. We reviewed the deposition testimony of Mr. Toby Saenz.
3. We reviewed the deposition testimony of Mr. John Leslie.
4. We reviewed the Deposition testimony of Mr. O’Neil Williams.
5. We reviewed some of the escalator service records, provided by the Schindler
Elevator Company.
(Docket Entry No. 26, Ex. B, at 3). The promised supplementation was barely more informative
than the first, inadequate report, and did not cure the deficiency.
The factors set out in cases like Hamburger and Harmon are intended to address such a
failure. The importance of the excluded testimony, the reason for the failure to comply with the
court’s scheduling orders, the prejudice that would arise from allowing the testimony, and the
availability of a continuance to cure any prejudice are all directly relevant to the present case.
In their supplemental briefing, the parties incorrectly focus on the fact that Calhoun timely
identified Pinkston by giving his name and a scant outline of his opinions. That is not sufficient.
Calhoun has failed to timely produce a Rule 26–compliant expert report. Calhoun’s failure to
comply with this court’s scheduling order to produce a Rule 26–compliant expert report remains
unexplained and unremedied. The court offers Calhoun a final opportunity to address the failure,
consistent with the factors discussed in Hamburger and Harmon. No later than December 7, 2012,
Calhoun must supplement her response to the motion to strike to address these factors.
SIGNED on November 28, 2012, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge

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