Whitaker v. Hyundai Motor Company et al
Filing
200
ORDER denying 169 Motion to Strike. Signed by Chief Judge Michael F. Urbanski on 2/5/19. (sas)
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED
IN THE UNITED STATES DISTRICT COURTFEB 0 5 2019
FOR THE WESTERN DISTRICT OF VIRGINIJ~c~~~ YJ-~RK
ROANOKE DIVISION
BY: ~~
CLARENCE EDWARD
WHITAKER, on behalf of himself
and as Administrator of the Estate
of Shannon Marie Whitaker,
deceased,
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Plaintiff,
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v.
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HYUNDAI MOTOR COMPANY, )
et al.,
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Defendants.
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Case No. 7:17-cv-00055
Michael F. Urbanski
Chief United States District Judge
By:
ORDER
Plaintiff Clarence Edward Whitaker (''Whitaker") flied his Motion to Strike the
Supplemental Report of Defense Expert Viola Acoff on January 25,2019. ECF No. 169.
D efendants Hyundai Motor Company and Hyundai Motor America, Inc. ("Defendants")
responded on February 1, 2019. ECF No. 182. The court heard argument on January 29,
2019.
Whitaker argues that the supplemental report by Dr. Acoff, served to Whitaker on
January 18, 2019, is "a vehicle for new opinions" rather than a response to Whitaker's expert
William Carden's supplemental report. Whitaker contends that Dr. Acoff offers new
opinions as to the quantities and percentages of tin, copper, sulfur, and carbon in the subject
blades of Mrs. Whitaker's Hyundai Santa Fe ("the vehicle"). Whitaker argues that Dr. Acoff
was obligated to disclose these in her original report or discuss them during her deposition,
and that it is "far too late in the day to permit these new opinions."
Defendants respond that Carden's 438-page second supplemental report presents
new opinions, analyses, and references and that Dr. Acoff merely responded to this new
material. Defendants claim that Dr. Acoff does not conduct any new tests or analyses in her
supplemental report, but focuses on the contents of Carden's report. Defendants conclude
that Rule 26(a)(2)(D)(ii) permits this report and that it was timely; even were it not, Fourth
Circuit precedent would not support the striking of this report as it poses no risk of
prejudice to Whitaker. See Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 596 (4th Cir. 2003) (discussing the five-factor test used to determine prejudice
to a party during discovery).
Federal Rule of Civil Procedure 26(a)(2)(D)(ii) states that, absent a stipulation or
court order, disclosures of expert evidence intended to rebut the opposing party's evidence
on the same subject must be made within 30 days of the opposing party's disclosure. Dr.
Carden's supplemental report was served by Whitaker to Defendants on December 20, 2018.
ECF No. 182, at 1. Dr. Acoffs supplemental report is thus timely. No court order bars the
filing of this report. Further, the report poses no risk of prejudice to Whitaker-Dr. Acoffs
report offers somewhat more detail on certain aspects of her first report, but her conclusions
have not changed and any surprise suffered is slight. ECF No. 169-2; ECF No. 169-1. See
Scott v. Holz-Her, U.S., Inc., No. CIV. 6:04CV00068, 2007 WL 3171937, at *2 (W.D. Va.
Oct. 26, 2007) (ruling to permit the filing of an expert's supplemental report) ("[fhe expert]
has not offered a new opinion, he has provided further evidence to support an opinion
already expressed in his prior reports. The surprise suffered by the Defendants is thus slight.
Defendants were already on notice ... "). See also Southern States Rack, 318 F.3d at 586
2
(stating that one factor in finding prejudice to a party is "the surprise to the party against
whom the witness was to have testified").
The court DENIES the motion. Dr. Acoff may testify at trial to the contents of her
supplemental report.
It is SO ORDERED.
Entered:
DJ...
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United States District Judge
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