Alfred Zaklit et al v. Global Linguist Solutions LLC et al
Filing
151
MEMORANDUM OPINION re: 135 Motion to Exclude the Expert Testimony of Plaintiffs' Proposed Expert Witness, and to Preclude Plaintiffs from Making Further Expert Disclosures. Signed by District Judge James C. Cacheris on 9/30/2014. (jall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ALFRED ZAKLIT, et al.,
Plaintiffs,
v.
GLOBAL LINGUIST SOLUTIONS,
LLC, et al.,
Defendants.
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M E M O R A N D U M
1:14cv314 (JCC/JFA)
O P I N I O N
This matter is before the Court on Defendant Global
Linguist Solutions LLC’s (“GLS” or “Defendant”) Motion to
Exclude the Expert Testimony of Plaintiffs’ Proposed Expert
Witness, and to Preclude Plaintiffs from Making Further Expert
Disclosures (“Motion”).
[Dkt. 135]
For the reasons set forth
below, the Court will grant the Motion.
I. Background
This case arises from Plaintiffs’ claims that GLS
falsely imprisoned them and other linguists on U.S. military
bases in Kuwait.
On August 6, 2014, the Court entered a Rule
16(b) Scheduling Order, which set the discovery deadlines in
this matter.
(“Rule 16(b) Order” [Dkt. 120].)
The deadline for
the exchange of initial expert disclosures pursuant to Rule
26(a)(2) of the Federal Rules of Civil Procedure was August 29,
1
2014, and the responses to the initial disclosures were due on
September 29, 2014.
(Rule 16(b) Order ¶ 4.)
Plaintiffs identify only one 1 expert: Anthony Edward
Reading, Ph.D., a licensed psychologist and clinical professor
at the University of California, Los Angeles.
[Dkt. 136] at 3 (as paginated by CM/ECF).)
(Def.’s Mem.
Plaintiffs disclosed
that Dr. Reading “will testify generally, and without
limitation, about the common psychiatric sequelae of false
imprisonment, the causal pathways, treatment considerations, and
the effects of false imprisonment on the human psyche and body .
. . [and the] emotional distress, and its manifest symptoms, and
other injuries caused by false imprisonment.”
(citing Ex. 4 [Dkt. 136-4] at 1).)
(Def.’s Mem. at 3
GLS argues that Plaintiffs’
expert disclosure of Dr. Reading does not comply with the
requirements under Rule 26(a)(2), and therefore, should be
excluded under Rule 37(c)(1) of the Federal Rules of Civil
Procedure.
Plaintiffs oppose this motion, [Dkt. 143], and GLS
filed a reply brief, [Dkt. 144].
Having been fully briefed, and after hearing argument
1
Plaintiffs’ originally stated in their responses to GLS’s First Set of
Interrogatories that they intended to rely on an economic expert for damages
computation. (Def.’s Mem. at 3 (citing Exs. 1-3 [Dkts. 136-1, 136-2, 1363]).) However, in their opposition brief to this Motion, Plaintiffs state
they no longer need an economic expert because they “dropped their wage and
hour claim.” (Pls.’ Opp’n [Dkt. 143] at 2.)
2
of counsel, the motion is now before the Court. 2
II. Standard of Review
Under Rule 26(a)(2)(B), a party’s expert disclosure
must be accompanied by a written report that is “prepared and
signed by the witness – if the witness is one retained or
specially employed to provide expert testimony in the case.”
The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and
reasons for them;
(ii) the facts or data
witness in forming them;
considered
(iii) any exhibits that will
summarize or support them;
be
by
the
used
to
(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).
“[T]he expert report should be
written in a manner that reflects the testimony the expert
witness is expected to give at trial.”
2
Sharpe v. United States,
The parties met and conferred via teleconference on September 9, 2014, as
required by E.D. Va. Local Civil Rule 37(E). (Def.’s Mem. at 4.)
3
230 F.R.D. 452, 458 (E.D. Va. 2005) (citing Fed. R. Civ. P.
26(a)(2)(B) advisory committee’s note to 1993 amendments).
Rule
26
disclosures
are
often
the
centerpiece of discovery in litigation that
uses expert witnesses.
A party that fails
to
provide
these
disclosures
unfairly
inhibits its opponent’s ability to properly
prepare, unnecessarily prolongs litigation,
and
undermines
the
district
court’s
management of the case. For this reason, we
give particularly wide latitude to the
district
court’s
discretion
to
issue
sanctions under Rule 37(c)(1).
Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir.
2005) (citation and internal quotation omitted).
If a party violates Rule 26(a), “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.”
37(c)(1).
Fed. R. Civ. P.
Exclusion of the witness is an “automatic sanction.”
Id., advisory committee’s note to 1993 amendments; see also Fed.
R. Civ. P. 26(a)(2)(B) advisory committee’s note to 1993
amendments (“Revised Rule 37(c)(1) provides an incentive for
full disclosure; namely, that a party will not ordinarily be
permitted to use on direct examination any expert testimony not
so disclosed.”)
To determine whether the party’s failure to properly
disclose is substantially justified or harmless, the court is
guided by the following factors: (1) the surprise to the party
4
against whom the evidence would be offered; (2) the ability of
the offering party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the offering party’s
explanation for its failure to properly disclose the evidence.
Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014)
(quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 596-97 (4th Cir. 2003)).
The Court first
determines whether the disclosing party violated Rule 26; if so,
it then determines if exclusion is appropriate under Rule 37.
III. Analysis
The parties do not dispute that Dr. Reading is an
expert witness who is required to produce a written report under
Rule 26(a)(2)(B).
Instead, GLS argues Dr. Reading’s written
report is deficient under Rule 26(a)(2)(B) for three reasons:
First, Dr. Reading fails to provide a complete statement of all
opinions that he will express at trial, much less the basis and
reasons for these opinions.
Civ. P. 26(a)(2)(B)(i)).)
(Def.’s Mem. at 5-6 (citing Fed. R.
Second, Dr. Reading’s report does not
contain the facts or data he considered in forming these
opinions.
(Id. (citing Fed. R. Civ. P. 26(a)(2)(B)(ii)).)
Third, even though Dr. Reading provides a list of cases where he
previously served as an expert, he does not identify which of
5
these cases took place in the last four years.
(Id. (citing
Fed. R. Civ. P. 26(a)(2)(B)(v)).)
In response, Plaintiffs argue first, that Dr. Reading
offered a complete statement of all opinions he will offer at
trial.
(Pls.’ Opp’n at 3-4 (discussing three specific
opinions).)
Second, Plaintiffs argue that Dr. Reading cited to
fourteen different sources from which he based his conclusions.
(Id. at 4-7.)
Third, Plaintiffs argue that Dr. Reading’s case
list permissibly exceeds the minimum requirements under the rule
because it lists all cases in which he has testified as an
expert.
The Court finds that Dr. Reading’s written report is
wholly deficient and does not comply with the requirements of
Rule 26(a)(2)(B).
Because Plaintiffs failed to provide a
substantial justification for these deficiencies, and moreover,
failed to remedy and supplement these deficiencies without
justification, Dr. Reading’s testimony will be excluded.
Dr. Reading’s written report fails to satisfy the most
basic requirement of Rule 26(a)(2)(B): that he express an
opinion.
Dr. Reading’s written report reads less like expected
expert testimony at trial and more like a brief introduction to
a scholarly article about the general psychological and
psychiatric effects of false imprisonment.
In the 1993
amendment to Rule 26, the advisory committee intended an
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expert’s written report to be so detailed and complete that it
would “dispense[] with the need to depose the expert,” unlike
the former version of the rule.
Fed. R. Civ. P. 26(a)(2)(B)
advisory committee’s note to 1993 amendments.
Here, Dr.
Reading’s “opinions” are really just conclusions or general
statements.
Indeed, Dr. Reading offers no opinion in his written
report specifically regarding Plaintiffs’ substantive claims in
this litigation.
Instead, in liberally construing Dr. Reading’s
written report, it can be said that Dr. Reading asserts three
general statements, which Plaintiffs describe as “opinions:”
(i) the “adverse effects” of imprisonment
“are potentiated where there is the belief
that the incarceration is unfair/illegal”
and “[a]dverse psychiatric and psychological
effects have been shown to develop even in
the
absence
of
pre-existing
psychiatric
disorders;”
(ii) false imprisonment “sets in motion high
levels
of
strain
stemming
from
the
attributional framework derived from the
predicament,” and this “confers high levels
of stress which over time erode coping, even
absent
privations
arising
from
the
conditions in which the individuals are
detained;” and
(iii) depending on the “duration of exposure
to incarceration,” effects may include the
“onset of posttraumatic stress disorder and
enduring personality changes,” and, those
without “appropriate treatment subsequent to
discharge” are “at risk for secondary issues
arising
from
attempts
to
self-medicate
7
ensuing
drugs.”
symptoms
(Pls.’ Opp’n at 4.)
with
alcohol
or
other
Dr. Reading’s three statements could be
applicable to any case.
Nothing in the written report makes his
statements specifically applicable to this matter.
See Sharpe
v. United States, 230 F.R.D. 452, 458 (E.D. Va. 2005)
(discussing the purpose of the 1993 amendment was, at least in
part, to avoid “sketchy and vague” responses to interrogatories
that supposedly disclosed the substance of an expert’s
testimony).
Stated differently, Dr. Reading does not opine on
Plaintiffs’ allegations of false imprisonment, or the effects of
the alleged false imprisonment on Plaintiffs.
Instead, Dr.
Reading concludes his written report by stating “[t]his
literature will be reviewed in terms of how it impacts the
plaintiffs with demonstration of the common psychiatric sequelae
of false imprisonment, the causal pathways and treatment
considerations.”
(Def.’s Mem. Ex. 4 at 34.)
But nothing in Dr.
Reading’s report actually opines on issues relevant to the
individual Plaintiffs in this litigation.
This alone violates
the clear mandate of Rule 26(a)(2)(B)(i), that an expert
witness’s written report must contain “a complete statement of
all opinions the witness will express.”
(emphasis added).
Without asserting an opinion on the matters at issue in this
litigation, Dr. Reading’s report defeats the very purpose of
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Rule 26(a)(2)(B). 3
Having found violations of Rule 26(a)(2)(B), the Court
now determines the appropriate remedy.
Plaintiffs’ deficient
expert disclosure “unfairly inhibits its opponent’s ability to
properly prepare, unnecessarily prolongs litigation, and
undermines the district court’s management of the case.”
427 F.3d at 278.
Saudi,
The Court finds Plaintiffs’ noncompliance is
not substantially justified, nor is it harmless.
Therefore,
exclusion of Dr. Reading’s testimony at trial is appropriate
under Rule 37(c)(1).
Under the well-known factors in S. States Rack &
Fixture, Inc., this sanction is warranted.
318 F.3d at 597
(setting forth the following factors: (1) surprise to nonoffering party; (2) ability to cure the surprise; (3) extent
allowing testimony would disrupt trial; (4) importance of the
testimony; and (5) party’s explanation for failure to disclose
testimony).
First, GLS would be surprised by Dr. Reading’s
testimony in support of, or in opposition to, a motion for
3
Because Dr. Reading’s written report fails in this threshold manner – in
that it fails to express an opinion on Plaintiffs’ claims – it is also clear
that Dr. Reading’s report has other shortcomings. First, Dr. Reading’s
written report does not give a basis or reason for these general statements,
also in violation of Rule 26(a)(2)(B)(i). Dr. Reading does cite various
studies regarding posttraumatic stress disorder and self-injury. (Def.’s
Mem. Ex. 4 at 33.) But without an opinion to offer, it is axiomatic that a
basis or reason would also be lacking. Second, Dr. Reading does not cite to
any information or data he considered when forming the opinions. In fact, it
is unclear whether Dr. Reading considered any outside information when
creating his written report. Thus, the written report also violates Rule
(a)(2)(B)(ii).
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summary judgment, or at trial.
The written report simply does
not disclose Dr. Reading’s opinion, as discussed above.
Consequently, GLS is left to speculate as to Dr. Reading’s
testimony, which defeats the purpose of Rule 26(a)(2)(B).
See
Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006) (“Every
litigant in federal court is plainly entitled under Rule
26(a)(2)(B) to be given the information spelled out therein, and
none shoulder the burden to independently investigate and ferret
out that information as best they can at the expense of their
client.”), abrogated on other grounds by Sawyer v. Ashbury, 537
F. App’x 283 (4th Cir. Aug. 13, 2013). 4
Therefore, the first
factor weighs in favor of exclusion.
Under factors two and three, Plaintiffs do not have
time to cure the surprise, given the deadlines in the Rule 16(b)
Order.
Responses to the initial expert reports were due on
September 29, 2014.
Discovery closes on October 10, 2014.
The
Final Pre-Trial Conference is scheduled for October 16, 2014.
Granting Plaintiffs leave to supplement the written report or to
cure the surprise and deficiency would necessarily impact the
current deadlines, and possibly the trial date in this matter,
which undermines this Court’s management of the case.
Saudi,
427 F.3d at 278-79; see also Campbell v. United States, No.
4
GLS would likely have to depose Dr. Reading before the close of discovery on
October 10, 2014, which is another consequence that Rule 26(a)(2)(B) attempts
to avoid.
10
3:10-CV-363, 2011 WL 588344, *4 (E.D. Va. Feb. 8, 2011) (“The
Federal Rules, along with the Local Rules and the Court’s
scheduling order, clearly map the course of pre-trial
litigation.
Failure to enforce the deadlines they provide
defeat their purpose.”).
Moreover, shortly after the
disclosure, GLS notified Plaintiffs of this deficiency on
September 2, 2014.
(Def.’s Mem. at 4 (citing Ex. 5).)
Instead
of properly supplementing the disclosure at that time,
Plaintiffs maintained the disclosure was sufficient,
necessitating the filing of this Motion and defeating the
purpose this Court’s meet and confer requirement.
E.D. Va.
Local Civil Rule 37(E) (“Counsel shall confer to decrease, in
every way possible the filing of unnecessary discovery
motions.”).
Therefore, the second and third factors also weigh
in favor of exclusion.
Under factors four and five, Dr. Reading’s testimony
is important: he is the only expert identified in this case.
However, Plaintiffs offered no explanation for the deficient
disclosure, and instead maintain it was entirely appropriate and
sufficient, even after GLS notified Plaintiffs of the deficiency
on September 2, 2014.
(Def.’s Mem. Ex. 5 [Dkt. 136-5].)
in weighing all of the factors discussed above, the Court
Thus,
concludes that exclusion of Dr. Reading’s testimony is
warranted, because Plaintiffs fail to demonstrate that the
11
noncompliance was substantially justified or harmless.
Carr,
453 F.3d at 602 (“It is the burden of the party facing sanctions
to show that the failure to comply was either substantially
justified or harmless.”).
Therefore, the Court will grant the
motion. 5
IV. Conclusion
For the foregoing reasons, the Court will grant GLS’s
motion to exclude the expert testimony of Dr. Reading.
An appropriate Order will issue.
September 30, 2014
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
5
The Court will deny GLS’s premature request to preclude Plaintiffs from
making further expert disclosures in this case. The time to disclose experts
has expired, and Plaintiffs have not sought leave to disclose additional
experts. The Rule 16(b) Scheduling Order is clear that to the extent any
party seeks modification of the order, leave of Court is required, but looked
upon with disfavor.
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