Brandon v. The Sage Corporation
Filing
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ORDER DENYING 11 Motion to exclude Plaintiff's Experts. Signed by Judge David A. Ezra. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARGIE BRANDON, individually,
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Plaintiff,
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vs.
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THE SAGE CORPORATION,
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Defendant.
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________________________________ )
CV. NO. 5:12-CV-1118-DAE
ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S
EXPERTS
Before the Court is a Motion to Exclude the Testimony of Plaintiff’s
Experts filed by Defendant The Sage Corporation (“Defendant”). (Dkt. # 11.) The
Court held a hearing on Defendant’s Motion on March 17, 2014. Glenn D. Levy
represented Plaintiff Margie Brandon (“Plaintiff”) at the hearing; Larry Warren
represented Defendant. Upon careful consideration of the arguments asserted in
the supporting and opposing memoranda, as well as the arguments presented at the
hearing, the Court DENIES Defendant’s Motion.
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BACKGROUND
Defendant operates a business that trains tractor-trailer drivers.
(“Compl.,” Dkt. # 1 ¶ 2.) Plaintiff is a Hispanic female residing in San Antonio
and previously worked for Defendant as a School Director beginning in March
2009. (Id. ¶¶ 8–9.) In March 2011, she terminated her employment with
Defendant because of an allegedly hostile and offensive work environment. (Id.
¶ 13.) In 2012, she filed a lawsuit against Defendant alleging that it engaged in
race or national origin discrimination, wrongful termination, retaliation, and other
related tortious conduct. (Id. ¶¶ 14–23.)
On February 26, 2013, this Court ordered both parties to submit
proposed scheduling recommendations within sixty days. (Dkt. # 4.) A little over
a month later, the parties filed their recommendations, which provided in relevant
part:
All parties asserting claims for relief shall file their designation of
potential witnesses, testifying experts, and proposed exhibits, and
shall serve on all parties, but not file the materials required by Fed. R.
Civ. P. 26(a)(2)(B) by July 30, 2013. Parties resisting claims for relief
shall file their designation of potential witnesses, testifying experts,
and proposed exhibits, and shall serve on all parties, but not file the
materials required by Fed. R. Civ. P. 26(a)(2)(B) by August 14, 2013.
All designations of rebuttal experts shall be designated within 14 days
of receipt of the report of the opposing expert.
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(Dkt. # 5 at 1.) The Court memorialized the parties’ recommendations in a
Scheduling Order filed on April 5, 2013. (Dkt. # 6.)
On April 9, 2013, Defendant served its first set of interrogatories on
Plaintiff. (Dkt. # 11, Ex. B.) In Defendant’s Interrogatory No. 4, Defendant
requested information regarding “each person you anticipate calling as a testifying
expert,” including “the expert’s name, address, telephone number, the subject
matter on which the expert will testify, and the general substance of the expert’s
opinions and mental impressions” with “a brief summary of the basis for them.”
(Id. at 6.)
On May 30, 2013, Plaintiff had not yet responded to Defendant’s
interrogatories, but served her initial disclosures under Rule 26(a)(1) on Defendant.
(Dkt. # 11, Ex. A.) She did not list any potential expert witnesses, but did provide
names of several individuals that may have discoverable information, including
Syed Ahsan, M.D, whom she described as having knowledge of her treatment of
stress-induced medical conditions related to the ending of her employment with
Defendant. (Id. at 5.)
On August 19, 2013, Plaintiff responded to Defendant’s
interrogatories. (Dkt. # 11, Ex. D.) With respect to Interrogatory No. 4, which had
requested information regarding testifying experts, she replied: “This case is still in
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the early stages and discovery is ongoing; Plaintiff has not employed any expert
witnesses. Plaintiff will supplement this interrogatory in accordance with the
Federal Rules of Civil Procedure. However Glenn D. Levy will testify as to
attorney[’]s fees, costs, and expenses.” (Id. at 6.)
Shortly after receiving Plaintiff’s answer, Defendant filed the instant
motion to Exclude Testimony of Plaintiff’s Experts. (“Mot.,” Dkt. # 11.) Plaintiff
filed a Response (“Resp.,” Dkt. # 12), to which Defendant filed a Reply (“Reply,”
Dkt. # 13.)
DISCUSSION
Defendant argues that Plaintiff’s attorney, Glenn D. Levy, Esq.
(“Levy”) and Dr. Syed Ahsan (“Ahsan”) should be precluded from testifying as
experts. (Mot. at 1–2, 7–8.) Defendant proffers two reasons to exclude Levy:
(1) Plaintiff disclosed him as an expert witness approximately three weeks after
expert witness disclosure deadline in the Court’s Scheduling Order, and (2)
Plaintiff did not furnish a written expert report from Levy as required by Federal
Rule of Civil Procedure 26(a)(2)(B). Similarly, Defendant argues that even though
Plaintiff did not designate Ahsan as an expert, Ahsan should be prospectively
precluded from providing expert testimony because Plaintiff also did not tender a
written expert report from Ahsan pursuant to Rule 26(a)(2)(B).
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I.
Plaintiff’s Delay in Designating Levy Past the Scheduling Order Deadline
Defendant first seeks to limit Levy’s testimony because Plaintiff
designated Levy as an expert on August 19, after the Scheduling Order’s July 30
deadline. (Mot. at 4–6.) Defendant contends that Plaintiff’s three-week delay is
evidence of her lack of diligence and, as such, Levy should not be permitted to
testify as an expert on Plaintiff’s attorney’s fees should she ultimately prevail on
the merits of her lawsuit. (Id.; Reply at 2–4.)
Federal Rule of Civil Procedure 16(b) governs the designation of
experts once a scheduling order has been issued by the district court. Rule 16(b)
provides that a scheduling order “shall not be modified except upon a showing of
good cause and by leave of the district judge.” The “good cause” standard requires
the “party seeking relief to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.” S & W Enters., LLC v.
Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A
Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed.
1990)). In determining whether a party has met the “good cause” standard, the
Fifth Circuit has instructed the district court to consider four factors: (1) the
explanation for the delay; (2) the importance of the testimony; (3) potential
prejudice in allowing the testimony; and (4) the availability of a continuance to
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cure such prejudice. Reliance Ins. Co. v. La. Land and Exploration Co., 110 F.3d
253, 257 (5th Cir. 1997). Nevertheless, district courts have “wide latitude” and are
allowed to act with “intelligent flexibility” in allowing parties to designate experts
beyond the deadline. Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996,
1000 (5th Cir. 1998).
A.
Explanation for the Delay
Defendant argues that Plaintiff “can offer no explanation that would
excuse or explain her failure to timely designate experts.” (Mot. at 4.) In
response, Plaintiff concedes that she does not have a specific reason for the delay,
but contends that her counsel “did not intentionally fail to designate. . . . It was not
due to conscious indifference.” (Resp. ¶ 7.) Instead, “[i]t was inadvertent and
accidental. Since Plaintiff’s counsel was responding to written discovery, and
designations and disclosure were being made at that time[,] any other designation
[was] accidentally overlooked.” (Id.)
Given Plaintiff’s concession that the deadline was “accidentally
overlooked,” Plaintiff clearly cannot demonstrate “good cause” for her delay.
Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995) (“[I]n order to
demonstrate ‘good cause’ a party must show that despite their diligence the time
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table could not have reasonably been met.” (emphasis added)). Therefore, the
Court finds that the first factor plainly favors Defendant.
B.
Importance of the Testimony
Neither party argued that Levy’s proposed expert testimony would be
exceedingly important. In the absence of any argument either for or against Levy’s
importance, the Court finds that the second factor does not weigh in favor of either
Plaintiff or Defendant.
C.
Potential Prejudice
Defendant asserts that if Plaintiff is allowed to designate Levy as an
expert on her attorney’s fees at this stage in the litigation, it would prejudice
Defendant because it would have the burden of reviewing additional expert
opinions and attempting to find rebuttal experts. (Mot. at 6.)
However, Plaintiff’s three-week delay in designating Levy as an
expert on his attorney’s fees can hardly have caused serious prejudice to Defendant
given that Defendant has known from the outset of the case that if Plaintiff
prevailed on the merits of her lawsuit, she would be seeking attorney’s fees. (See
Compl. at 7 (requesting attorney’s fees and costs); see also Mungia v. Judson
Indep. Sch. Dist., No. SA-09-CV-395-XR, 2010 WL 707377, at *1 (W.D. Tex.
Feb. 24, 2010) (discerning “little prejudice” to the defendant because he had been
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on notice since the inception of the lawsuit that the plaintiff had been seeking
attorney’s fees).)
In any event, Defendant has not truly suffered prejudice by Plaintiff’s
delayed designation because it should have known that Levy would be designated
as an expert on his own attorney’s fees garnered through the prosecution of
Plaintiff’s case. See Wright v. Blythe-Nelson, No. 3:99-CV-2522-D, 2001 WL
804529, at *6 (N.D. Tex. July 10, 2001) (“Attorneys who represent parties against
whom such fees are sought are not surprised by expert testimony because they can
usually expect that opposing counsel will attempt to prove his attorney’s fees and
because they are themselves experts on the subject.”); see also Ollie v. Plano
Indep. Sch. Dist., 4:06-CV-69, 2007 WL 2315459, at *1 (E.D. Tex. Aug. 10, 2007)
(“Courts have treated the designation of attorney’s fee experts differently from
other experts because an attorney representing a party against whom attorney’s
fees are sought should not be surprised by opposing counsel attempting to prove
his attorney’s fees through his own expert testimony.”).
Moreover, because attorney’s fees are determined at the close of the
case and this case has not yet been set for trial, Plaintiff’s three-week delay did not
prejudice Defendant. Mungia, 2010 WL 707377, at *1 (holding that the defendant
did not suffer prejudice because attorney’s fees are determined at the close of the
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case by the court); see also Straus v. DVC Worldwide, Inc., 484 F. Supp. 2d 620,
633 (S.D. Tex. 2007) (denying a motion to strike the defendants’ experts on
attorneys’ fees for late designation because “[a]ttorneys’ fee claims are generally
resolved at the close of the case, after both liability and damages have been
determined” so the defendants’ delay did not prejudice the plaintiff).
Defendant cannot show any prejudice from Plaintiff’s three-week
delay in designating Levy as an expert on her attorney’s fees. The third factor
weighs heavily in favor of Plaintiff.
D.
Possibility of Continuance to Cure Prejudice
Given that Defendant will not suffer any prejudice due to Plaintiff’s
delay, this factor is inapplicable. However, even if Defendant were to demonstrate
that it has or will suffer prejudice, a continuance would easily provide a sufficient
remedy. In any event, the Court has not yet set a trial date, and the Court recently
extended the parties’ discovery and dispositive motion deadlines per the Court’s
text order on February 28, 2014.
Accordingly, the Court finds that although Plaintiff’s inadvertent
failure to designate counsel as an expert on her attorney’s fees weighs in
Defendant’s favor, the lack of any prejudice to Defendant warrants permitting
Levy to serve as an expert on Plaintiff’s attorney’s fees.
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II.
Plaintiff’s Lack of Compliance with Rule 26(a)(2)(B)
First, Defendant argues that because the Court’s Scheduling Order
mandated that experts submit a written report containing the expert’s opinions and
qualifications in accordance with Rule 26(a)(2)(B) and Plaintiff’s designation of
Levy did not include such a report, Levy’s expert testimony should be stricken.
(Mot. at 7.)
Rule 26(a)(2)(B) provides that “[u]nless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the
party’s employee regularly involve giving expert testimony.” Fed. R. Civ. P.
26(a)(2)(B). As a corollary, Rule 37(c) states that a party who fails to disclose
information required by Rule 26(a) shall not be allowed to use any witness or
information as evidence that had not been disclosed, unless such failure is
harmless. Fed. R. Civ. P. 37(c).
However, attorneys providing expert testimony solely on the topic of
their fees typically do not provide expert reports. Kondos v. Allstate Tex. Lloyds,
1:03-CV-1440, 2005 WL 1004720, at *18 (E.D. Tex. Apr. 25, 2005) (“Generally,
however, attorneys testifying solely on the topic of attorneys’ fees are not required
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to provide expert reports.”); accord McCulloch v. Hartford Life & Acc. Ins. Co.,
223 F.R.D. 26, 29 (D. Conn. 2004) (denying a motion to strike the expert
designation of defendant’s attorneys because “[i]n practice, courts in the District of
Connecticut do not require that attorneys testifying solely on the topic of attorney’s
fees provide expert reports”). In fact, as Plaintiff points out, Local Rule 7(j)
requires that “a claim for attorney’s fees shall be made by motion not later than 14
days after entry of judgment pursuant to Federal Rule of Civil Procedure 54(d)(2).”
W.D. Tex. Civ. R. 7(j) (emphasis added). Formal written expert reports for
attorney’s fees applications are unnecessary at the present stage of the litigation.
But even if Levy were required to tender an expert report on his fees,
any delay is undoubtedly harmless because it was unintentional. See Cambridge
Strategies, LLC v. Cook, 3:10-CV-2167-L, 2012 WL 176587, at *8 (N.D. Tex.
Jan. 23, 2012) (denying a motion to strike a late designation of attorney expert
because the “failure to disclose [the] attorney’s fees witnesses appeared to have
been an inadvertent oversight or misunderstanding as to the parties’ disclosure
deadlines”). Plaintiff affirmed that any delayed designation was “inadvertent” and
“accidental.” (Resp. ¶ 7.)
Moreover, Defendant has not (and will not) suffer sufficient prejudice
to justify striking Plaintiff’s counsel’s expert designation on her attorney’s fees
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under Rule 37(c). “The reason for requiring expert reports is ‘the elimination of
unfair surprise to the opposing party and the conservation of resources.’” Reed v.
Binder, 165 F.R.D. 424, 429 (D.N.J. 1996) (quoting Sylla-Sawdon v. Uniroyal
Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995)). There is no unfair surprise
and Defendant’s resource-conservation efforts have not been affected. Defendant
has been on notice since the inception of this litigation that Plaintiff seeks
attorney’s fees. See Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546,
563–64 (5th Cir. 2004) (finding that because the defendant knew that Boyer would
provide expert testimony on the reasonableness of attorney’s fees well in advance
of trial, the defendant did not suffer prejudice; the failure to disclose an expert
report from Boyer amounted to harmless error).
Also as a result of Plaintiff’s alleged non-compliance with Rule
26(a)(2)(B), Defendant attempts to limit the testimony of Dr. Syed Ahsan because
Plaintiff has not provided his expert report either. (Mot. at 7.) However, as
Defendant admits, “Plaintiff does not name Ahsan as a witness, let alone designate
him as an expert witness.” (Id.; see also Dkt. # 11, Ex. A at 5; Dkt. # 11, Ex. D at
5.) At the hearing, Plaintiff’s counsel averred that the lack of designating Ahsan
was purposeful; he did not intend to use any expert testimony, let alone from
Ahsan, to prosecute his case. Instead, Plaintiff only seeks to use Ahsan as a
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treating physician with knowledge of her stress-related medical issues due to her
separation from employment with Defendant. (See Dkt. # 11, Ex. A at 5; Dkt.
# 11, Ex. D at 5.) Given that Rule 26(a)(2)(B) only applies to a witness that is
“retained or specially employed to give expert testimony” and Plaintiff’s counsel
affirmed that he will not use Ahsan as an expert, Defendant’s attempt to limit
Ahsan’s testimony for Plaintiff’s alleged non-compliance with Rule 26(a)(2)(B) is
unnecessary.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s Motion to
Exclude Testimony of Glenn D. Levy, Esq. as to Plaintiff’s attorney’s fees (Dkt.
# 11). The Court DENIES AS MOOT Defendant’s Motion to Exclude Testimony
of Syed Ahsan, M.D. (Dkt. # 11).
IT IS SO ORDERED.
DATED: San Antonio, Texas, March 18, 2014.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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