Eagle West Insurance Company v. Watts Regulator Co. et al

Filing 52

ORDER denying Plaintiff's 46 Motion to Exclude Defendant's Late Disclosed Experts. Signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EAGLE WEST INSURANCE
COMPANY, a subrogee of Cypress Place
Condominium Owners Association,

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CASE NO. C16-0781-JCC
ORDER

Plaintiff,
v.

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AMTROL, INC.,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion to strike Defendant’s experts as

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not timely disclosed (Dkt. No. 46). Having thoroughly considered the parties’ briefing and the

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relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for

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the reasons explained herein.

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I.

BACKGROUND

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This case arises out of damage caused by a leaking water expansion tank at a

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condominium complex. (Dkt. No. 1-1 at 3.) Defendant Amtrol, Inc. manufactured the subject

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tank. (Id.) Trial was initially set for October 16, 2017, with a discovery deadline of July 7, 2017.

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(Dkt. Nos. 29 at 8; 15.) On June 15, 2017, Plaintiff revised its theory as to the cause of the

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leaking tank and subsequently disclosed an updated expert report. (Dkt. Nos. 36-1; 24-1 at 16.)

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On July 7, 2017, Defendant filed a motion to continue trial, based in part on the significant shift
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in Plaintiff’s case theory. (Dkt. No. 23.) The Court granted the motion and continued trial to

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February 20, 2018. (Dkt. No. 37 at 8.) The Court also extended the discovery cutoff date to 120

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days before the new trial date—October 23, 2017. (Id.)

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Defendant has disclosed three experts. The day before the initial discovery cut-off date,

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Defendant supplemented its discovery responses by providing a report from Amtrol engineer

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Robert Manser and identifying him as a fact and expert witness. (Dkt. No. 29 at 8.) On the eve of

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the new discovery cut-off date of October 23, 2017, Defendant disclosed an expert report from

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Dr. Caliguiri and Dr. Ganot—both of whom were listed as potential liability expert witnesses in

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Defendant’s April 25, 2017 supplemental initial disclosures. (Dkt. No. 47-5 at 3.) Plaintiff now

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moves to exclude these experts as not timely disclosed. (Dkt. No. 19.)

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II.

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DISCUSSION
Parties are required to disclose an expert and her report “at the times and in the sequence

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that the court orders,” or, in the absence of a court order, 90 days before trial. Fed. R. Civ. P.

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26(a)(2)(D).

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The expert report of Drs. Caliguiri and Ganot was timely disclosed. (See Dkt. No. 37 at

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6); Hudson Enterprises, Inc. v. Certain Underwriters at Lloyd’s London Ins. Cos., 855 F.3d 874,

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877 (8th Cir. 2017) (party complied with the Federal Rules of Civil Procedure by disclosing their

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expert on the last day allowed by the scheduling order). Plaintiff asserts that this Court’s August

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2, 2017 order continuing trial and resetting the discovery deadline “did not extend the expert

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disclosure dates,” and that Defendant was “required to disclose [expert] reports or opinions

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before the initial July 7, 2017 discovery deadline.” (Dkt. No. 46 at 5, 6.) However, neither

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scheduling order set expert disclosure dates. (Dkt. Nos. 12; 37 at 8.) Rather, the Court set—and

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then extended—a general discovery deadline, which Defendant met. (Id.)

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Nor is there any indication that Defendant withdrew Drs. Caliguiri and Ganot as experts

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and should thus be barred from presenting their testimony. (See Dkt. No. 46 at 5–6.) Plaintiff

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argues that Defendant implicitly substituted Mr. Manser as its sole expert by failing to provide a
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report by Drs. Caliguiri and Ganot by the original discovery deadline and by disclosing Mr.

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Manser’s report at that time. (Id.) Defendant identified Drs. Caliguiri and Ganot as potential

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experts in its supplemental initial disclosures in April 2017, stating that a report would be

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provided once experts had formed opinions and in accordance with the scheduling order. (Dkt.

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No. 47-5 at 3.) Additional responses identifying Mr. Manser as an expert specified that the

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responses supplemented previous answers. (Dkt. No. 47-3) (emphasis added). There is no basis

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for Plaintiff’s assertion that Defendant “withdrew Drs. Caligiuri and Ganot.” (Dkt. No. 46 at 5.)

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Moreover, Defendant’s decision not to provide a report and opinion of these experts before July

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7, 2017 is not entirely surprising, given the significant June 2017 shift in Plaintiff’s case theory,

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and Plaintiff’s expert’s updated opinion that relied on new evidence. (See Dkt. No. 37 at 6.)

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Because the Court finds it appropriate to deny Plaintiff’s motion to strike, it will also

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deny Plaintiff’s request for attorney fees for bringing the motion. (See Dkt. No. 46 at 5.)

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III.

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LEAVE TO DEPOSE
While Defendant complied with the letter of the scheduling order and the Federal Rules,

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the Court realizes that Defendant’s eleventh-hour disclosure places a burden on Plaintiff, who

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now, after the close of discovery, must obtain the Court’s leave to depose the experts. See Fed.

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R. Civ. P. 26(b)(4)(A) (deposition of an expert may occur only after the report is provided). The

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Court thus sua sponte extends the discovery deadline until February 5, 2018 for the sole purpose

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of providing Plaintiff the opportunity, if desired, to depose Drs. Caligiuri and Ganot.

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IV.

CONCLUSION

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Plaintiff’s motion to strike Defendant’s experts (Dkt. No. 46) is therefore DENIED.

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DATED this 2nd day of January 2018.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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