Scraggs v. NGK Spark Plugs (U.S.A.), Inc.

Filing 46

MEMORANDUM OPINION AND ORDER granting the defendant's 31 MOTION to Exclude Plaintiff's Expert Witness. Signed by Judge Joseph R. Goodwin on 5/13/2016. (cc: counsel of record; any unrepresented party)(published opinion to the court's website, www.wvsd.uscourts.gov) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DORIS SCRAGGS,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-11357

NGK SPARK PLUGS (U.S.A.) INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant’s Motion to Exclude Plaintiff’s Expert
Witness [ECF No. 31]. The Motion is GRANTED.1
I.
This case concerns the plaintiff’s allegations that her employer violated the
Family Medical Leave Act, but this Memorandum Opinion and Order focuses on a
discrete discovery issue. The defendant asks the court to exclude the plaintiff’s
designated expert, Roger A. Griffith, because the plaintiff did not comply with the
rules governing disclosure of expert witnesses and the court’s Scheduling Order. See
Fed. R. Civ. P. 26(a)(2); Scheduling Order [ECF No. 15].

The defendant also asks the court to strike the Response [ECF No. 42], which was filed on April 11,
2016, as untimely filed. According to the defendant, because the Motion was filed on March 23, 2016,
the plaintiff had to respond by April 6, 2016. This computation of time is incorrect. The response
deadline was April 11, 2016, so the Response was timely filed. Fed. R. Civ. P. 6(a), (d); S.D. W. Va. L.R.
Civ. P. 5.1(c), 7.1(a)(7); S.D. W. Va. Admin. P. Elec. Case Filing R. 9.6; see also Michael E. Rosman,
Counting the Days Gone By: A Eulogy for Former Rule 6(a)(2), 159 U. Penn. L. Rev. 635, 639 n.11
(2011).
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After the plaintiff filed her Complaint [ECF No. 1-1] in the Circuit Court of
Kanawha County, West Virginia, the defendant removed the case to the United
States District Court for the Southern District of West Virginia. On September 28,
2015, the court entered the Scheduling Order.
Near the end of October 2015, the plaintiff disclosed that she had retained
Griffith as an expert witness. Mot. Exclude Ex. 1, at 2 [ECF No. 31-1]. And on March
4, 2016—the deadline for her expert disclosures—the plaintiff certified service of
her expert disclosure. Cert. Service, Mar. 4, 2016 [ECF No. 26]. But she only provided
Griffith’s curriculum vitae to the defendant. See Mot. Exclude Ex. 2, at 1 [ECF
No. 31-2]. The defendant then informed the plaintiff that her disclosure was
insufficient:
To date, we have only received a copy of Mr. Griffith’s curriculum vitae.
We have not received any other information required to be disclosed by
Rule 26(a)(2)(B), such as a complete statement of all opinions that Mr.
Griffith will express, the facts or data considered by Mr. Griffith, a list
of all cases in which Mr. Griffith has testified, or a statement of the
compensation to be paid for his opinion testimony.

Id.
On March 23, 2016—after the plaintiff failed to address the defendant’s
concerns—the defendant moved to exclude Griffith because the plaintiff failed to
provide an adequate expert disclosure. Finally, on April 8, 2016, the plaintiff
disclosed Griffith’s “preliminary report,” which included a brief “preliminary analysis
of [the plaintiff’s] unmitigated expected economic loss.” Reply Ex. 1, at 1, 3 [ECF No.
43-1]; see also Cert. Service, Apr. 8 [ECF No. 40]. By this time, the deadlines for
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written discovery requests and for the defendant’s disclosure of expert witnesses had
passed.
II.
To start, the plaintiff cannot honestly dispute the inadequacy of her
disclosures. Parties are required to disclose expert witnesses who may present expert
testimony. An adequate disclosure includes the identity of the witness and a report
prepared by the witness. Fed. R. Civ. P. 26(a)(2)(B).
The report must contain a complete statement of the expert’s opinions, the
basis for those opinions, the information considered when forming those opinions, and
any exhibits used to summarize or support those opinions. Fed. R. Civ. P.
26(a)(2)(B)(i)–(iii). Along with this opinion-centric information, the report must
provide the expert’s qualifications, a list of other cases in which the expert testified,
and a statement of the expert’s compensation in the case. Fed. R. Civ. P.
26(a)(2)(B)(iv)–(vi).
Neither of the disclosures in this case meets these requirements. At first, the
plaintiff only disclosed Griffith’s name and his curriculum vitae. When the expert
disclosure deadline passed, the plaintiff had only provided one of the six required
components. Fed. R. Civ. P. 26(a)(2)(B)(iv) (requiring a party to disclose “the witness’s
qualifications”).
Then—more than a month later and faced with a motion to exclude—the
plaintiff provided Griffith’s “preliminary report.” Even assuming this “preliminary
report” includes a complete statement of Griffith’s opinions, his reasons for
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those opinions, the information he considered, and the exhibits used in relation
to those opinions, the disclosure remains deficient. See Fed. R. Civ. P. 26(a)(2)(B)(v)–
(vi) (requiring a party to disclose “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 “a statement of the compensation to be paid for the study and testimony in the
case”).
Now the plaintiff attempts to paint her second disclosure—the “preliminary
report”—as a supplemental disclosure: “[T]he report was submitted in a
supplementary disclosure subsequent to the initial identification of Mr. Griffith as an
expert economist.” Resp. 3 [ECF No. 42]. The plaintiff misunderstands
supplementation under Rule 26(e). A party may supplement an expert report
“to correct inadvertent errors or omissions.” Gallagher v. S. Source Packaging, LLC,
568 F. Supp. 2d 624, 630 (E.D.N.C. 2008). The rule is based on an elementary
assumption: the party seeking to supplement the expert report has already disclosed
the report. The rule is not a loophole hidden in plain sight—as the plaintiff appears
to suggest—permitting a party to provide blatantly inadequate and minimally
informative initial disclosures and to follow up with a substantive supplement at his
or her pleasure.
Because the plaintiff never disclosed an expert report that complied with Rule
26(a)(2) in the first instance, she had nothing to supplement. So Rule 26(e) provides
her no refuge. Accordingly, the plaintiff must face the consequences of failing to
comply with the disclosure requirements of Rule 26(a)(2).
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III.
When a party fails to provide information regarding an expert witness or to
identify that witness, the penalty is exclusion. Fed. R. Civ. P. 37(c)(1). The sanction
is “self-executing,” or “automatic,” providing “a strong inducement for disclosure of
material that the disclosing party would expect to use as evidence.” Fed. R. Civ. P. 37
advisory committee’s note to 1993 amendment. To avoid unduly harsh penalties,
there is an exception to the rule of automatic exclusion. Exclusion is not triggered if
the failure to disclose is “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1).
At the outset, the plaintiff claims her failure is substantially justified. Whether
a failure to disclose is substantially justified turns on “the non-disclosing party’s
explanation for its failure to 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, 597 (4th Cir. 2003)). According to the plaintiff, Griffith did not
complete his report before the disclosure deadline because the plaintiff “was
attempting to obtain personal tax information.” Resp. 1.
Suffice it to say, this is not a compelling reason for the plaintiff’s failure. At
least four months before her expert disclosures were due, the plaintiff knew she was
going to present expert testimony on damages through Griffith. Compare Mot. Ex. 1,
at 2 (disclosing Griffith’s name in a filing dated October 30, 2015), with Scheduling
Order 1 (setting expert disclosure deadline of March 4, 2016). She should have been
able to secure and provide to Griffith her own personal records at some time during
these four months. And if she could not, the plaintiff had ample time to ask the court
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for additional time to make her expert disclosures. She did not. Instead, she ignored
the Scheduling Order and the Federal Rules of Civil Procedure.
The plaintiff also claims her failures are harmless. Her late and lacking
disclosures, she says, will not prejudice the defendant and, even if they do, any
prejudice is easily cured because there is still time to depose Griffith. But the plaintiff
mistakenly equates “harmless” with “prejudicial.” And the harm caused by the
plaintiff’s failure necessarily prevents it from being harmless.
When evaluating whether an untimely disclosure is harmless, a district court
should evaluate “(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; [and] (4) the importance of the
evidence.” S. States, 318 F.3d at 597. But a district court is “not required to tick
through each of the Southern State factors.” Wilkins, 751 F.3d at 222; see also Hoyle

v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011) (“Cases decided subsequent to
Southern States have not required courts to expressly consider each factor when
evaluating discovery violations.”). The factors are a guide, a recommendation.
Because the Southern States factors are neither mandatory nor afforded
certain weight, their helpfulness is undermined. When evaluating a district court’s
application of a plainly written rule, an appellate court is sometimes inclined to
develop a factorial test. Often, these test elucidate; sometimes, as here, they
obfuscate.

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Take, for example, the first Southern States factor—surprise. The court is
certainly surprised to learn a party is unable to follow a scheduling order to comply
with a common disclosure rule. Shouldn’t the party’s opponent be surprised by this,
too? Or should a party’s opponent expect a late disclosure when it knows there will
be an expert but a report is not filed before the disclosure deadline? So is there always
surprise in cases like this one? Or is there never surprise? It seems this factor is of
little assistance given the violation of Rule 26(a) here and is probably better suited
for other circumstances.
Anyway, Southern States and its offspring emphasize that the harmlessness
factors are not mandatory. So a district court’s discretion is at its height when the
court is deciding whether an untimely disclosure is harmless. When exercising such
broad discretion, a district court can weigh and measure the factors as it sees fit,
sidelining one and allowing another to star.
With the Southern States factors in mind, the court turns back to whether
Griffith should be excluded. Above all, the court is concerned with the havoc that
would be wrought upon the schedule if sanctions were not imposed. The plaintiff
casually claims her untimeliness barely affects the schedule because—at the time she
responded to the Motion—the defendant “ha[d] ample time to depose Mr.
Griffith” and because “[t]he trial in this matter is not scheduled to commence until
August 23, 2016.” Resp. 3. By focusing on the deposition deadline and the trial
date, the plaintiff does not see how her delay disrupts the entire schedule set for this
case:
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

If the court gives the plaintiff what she wants, the court will have
to revive and reschedule the defendant’s expert disclosure
deadline.



If the court revives and reschedules the defendant’s expert
disclosure deadline, the court will have to revive and reschedule
the plaintiff’s rebuttal expert disclosure deadline.



If the court revives and reschedules the plaintiff’s rebuttal expert
disclosure deadline, the court will have to extend the time the
parties have to complete discovery.



If the court extends the time the parties have to complete
discovery, the court will need to change the deadline for the filing
of dispositive motions.



And so on.

The court is quite certain that if the dilatory disclosure were permitted, the schedule
will be wholly disrupted and the trial will almost assuredly need to be moved.
Further disruption is likely. Based on the representations made to and the
information before the court, Griffith’s report remains inadequate because it does not
include, for example, a list of cases in which he testified as an expert or a statement
about his compensation. See Fed. R. Civ. P. 26(a)(2)(B)(v)–(vi); see also Reply 5 [ECF
No. 43] (noting “Plaintiff still has not disclosed a report from Mr. Griffith that
complies with Rule 26(a)(2)(B)” even after receiving Griffith’s “supplemental report”).
Bringing the report into compliance with the rule would require further extensions
and modifications to the schedule. This, the court will not entertain.
Quite simply, the plaintiff’s untimely disclosure is neither harmless nor
substantially justified. Accordingly, the court EXCLUDES Griffith pursuant to Rule
37(c).
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IV.
The court digresses to address a growing concern.
As of late, more and more cases have presented problems with the application
of the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure for the
Southern District of West Virginia. Piecemeal disclosure is an increasingly common
occurrence, an occurrence that leads to more motions to exclude. Motions to seal have
been submitted with little regard for the requirements set out in the Local Rules. S.D.
W. Va. L.R. Civ. P. 26.4(b). Motions have been submitted without required
memoranda. S.D. W. Va. L.R. Civ. P. 7.1(a)(2). Even the simplest rules about
attaching exhibits have been ignored. S.D. W. Va. Admin. P. Elec. Case Filing R.
10.3.2. And on, and on.
As a result, more and more motions on minute matters must be resolved. In
some circumstances, motions must be redone and resubmitted. In others, evidence is
excluded or a seal is refused. As the court must attend to more of these tertiary
matters, it is distracted from others matters closer to the merits of a case. Simply put,
an uptick in failures to adhere to scheduling orders and procedural rules wastes the
resources of both the court and the parties.
Parties before the court are advised to proceed with greater care and to pay
more attention to the relevant rules of procedure.
V.
The plaintiff has not shown that her failure to disclose expert evidence in a
timely fashion was substantially justified or harmless. As a consequence, the plaintiff
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cannot offer the expert testimony of Griffith and the court GRANTS the defendant’s
Motion to Exclude Plaintiff’s Expert Witness [ECF No. 31].
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party. The court further DIRECTS the Clerk to post a copy of
this published opinion on the court’s website, www.wvsd.uscourts.gov.
ENTER:

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May 13, 2016