Brock et al v. Cabot Oil & Gas Corporation

Filing 49

MEMORANDUM OPINION AND ORDER referral to Magistrate Judge Dwane L. Tinsley is withdrawn; granting in part and denying in part 40 MOTION by Cabot Oil & Gas Corporation to Exclude Plaintiffs' Expert Witness; the motion is GRANTED to the exten t it requests that the court strike the plaintiffs' untimely disclosure of Mr. Leslie and preclude the plaintiffs from using his expert opinion testimony and report; and the motion is DENIED to the extent it requests that the defendant be reimbursed for attorney's fees. Signed by Judge Joseph R. Goodwin on 2/13/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CECIL BROCK, et al.,
v.

CIVIL ACTION NO. 2:17-cv-02331

CABOT OIL & GAS CORPORATION,
MEMORANDUM OPINION AND ORDER
Pending before the court is Cabot Oil and Gas Corporation’s Motion to Exclude
Plaintiffs’ Expert Witness [ECF No. 40]. The plaintiffs filed a response [ECF No. 46],
and the defendant filed a reply. [ECF No. 47]. The matter is ripe for adjudication.
This motion was originally referred to Magistrate Judge Dwane L. Tinsley, but that
referral is hereby WITHDRAWN. For the reasons stated herein, the motion is
GRANTED in part and DENIED in part.
I.

Factual Background
On May 30, 2017, the court entered a scheduling order which required that the

plaintiffs disclose their expert witnesses, pursuant to Federal Rule of Civil Procedure
26(a)(2), by October 10, 2017. Sched. Order [ECF No. 6]. Before this case was removed
to federal court, the plaintiffs informed the defendant that they expected to call
Bradley Leslie as an expert. Cabot Oil & Gas Corp.’s Mem. 2 (“Def.’s Mem.”) [ECF
No. 41]. After removal, in their Rule 26(a)(1)(A)1 disclosures, the plaintiffs named

Federal Rule of Civil Procedure 26(a)(1)(A) requires parties to provide certain information to other
parties without waiting for a discovery request. It has separate requirements from Rule 26(a)(2).
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Mr. Leslie as a potential expert witness. Id. The plaintiffs, however, did not disclose
Mr. Leslie to the defendant under Rule 26(a)(2) until January 2, 2018, when they sent
the defendant Mr. Leslie’s report. Id.
The defendant now seeks to exclude Mr. Leslie as an expert witness based on
two arguments. Id. at 3–9. First, the defendant seeks to exclude Mr. Leslie because
the plaintiffs failed to disclose him on time pursuant to the court’s scheduling order.
Second, the defendant seeks to exclude Mr. Leslie because his report does not comply
with the content requirements proscribed by Rule 26(a)(2)(B)(i)-(vi). The defendant
further requests attorney’s fees incurred due to the plaintiffs’ noncompliance with the
Scheduling Order pursuant to Rule 16(f). Id. at 9.
II.

Discussion
a. Rule 26(a)(2)
Rule 26(a)(2) requires parties to disclose any expert witness it intends to use

at trial and accompany the disclosure with a written report—prepared and signed by
the witness—that contains specific information as required by Rule 26(a)(2)(B).
Under Rule 37(c), “[i]f a party fails to . . . identify a witness as required by Rule 26(a)
. . . the party is not allowed to use that . . . witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
The Fourth Circuit uses a five-factor test to determine whether a party’s
nondisclosure is substantially justified or harmless including: “(1) the surprise to the
party against whom the evidence would be offered; (2) the ability of that party to cure
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the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4)
the importance of the evidence; and (5) the nondisclosing party’s explanation for its
failure to disclose the evidence.” S. States Rack and Fixture, Inc. v. Sherwin-Williams

Co., 318 F.3d 592, 596 (4th Cir. 2003) (citations omitted). The first four factors relate
mainly to whether the nondisclosure is harmless, and the fifth relates to whether the
nondisclosure was substantially justified.
The court will start with whether the nondisclosure was substantially justified.
When analyzing this, courts look to the nondisclosing party’s explanation for its
failure to disclose the evidence. Here, the plaintiffs’ counsel explains that he filed this
action in state court, where reports of this kind are not required. Pls.’ Resp. to Def.’s
Mot. Exclude Evid. 6 [ECF No. 46]. The plaintiffs’ counsel admits that he does “not
practice regularly in US District Court” and argues that he tried to remedy his
tardiness by stipulating that the defense counsel could take the expert’s deposition if
desired. Id. at 3. The court, while sympathetic to the plaintiffs’ counsel, cannot find
that the nondisclosure was substantially justified just because this case was removed
to federal court and the plaintiffs’ counsel does not regularly practice in federal court.
To hold otherwise would give many of the attorneys who practice in front of this court
a free pass around Rule 37(c)—a pass it does not wish to bestow.
Since the nondisclosure was not substantially justified, the plaintiff’s late
disclosure of their expert will be stricken unless it was harmless. As to the first factor,
the surprise to the party against whom the evidence would be offered, the court has
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a hard time finding that the defendant was “surprised” by the plaintiffs’ late
disclosure of Mr. Leslie. The defendant admits that the plaintiffs informed it of their
intention to call Mr. Leslie as an expert witness twice before the Rule 26(a)(2)
disclosures were due. Def.’s Mem. 2. Therefore, it should have hardly been “surprised”
when the plaintiffs filed a late Rule 26(a)(2) disclosure.
As to the second factor, the ability to cure the surprise, the defendant argues
that the surprise here is “incurable, or, at the very least, would require substantial
cost, time, and effort” and “waste judicial resources.” Id. at 6. The defendant argues
that the court’s scheduling order specifically required that the plaintiffs disclose their
experts before the deadline set for the defendants to disclose their experts. Since the
plaintiffs were so late in their disclosure, however, their expert had ample
opportunity to review the defendant’s expert’s report before creating his own. Id.
Additionally, the defendant heavily relied on the fact that the plaintiffs did not have
an expert opinion to support their claims in its motion for summary judgment since
at the time dispositive motions were due, the plaintiffs had not yet disclosed Mr.
Leslie as an expert. Id. The court finds both of these arguments convincing. There is
no way to cure the fact that the plaintiffs’ expert was able to rely on the defendant’s
expert’s report when creating his own.
The plaintiff’s ability to cure how this would affect the defendant’s motion for
summary judgment leads perfectly into the third factor—the extent to which allowing
the evidence would disrupt the trial. Trial is currently set for April 17, 2018. Sched.
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Order 2. If the court were to admit Mr. Leslie’s report, it would substantially disrupt
the arguments the defendant made in its motion for summary judgment which would
likely prompt the defendant to seek permission to refile its motion. Additionally, the
defendant has submitted that it would, understandably, want discovery reopened in
order to depose Mr. Leslie and request documents that Mr. Leslie relied on in his
report. Such events would disrupt the upcoming trial date.
The final factor courts look to in determining harmlessness is the importance
of the evidence. “This factor must be viewed from the perspective of both parties.” S.

States Rack and Fixture, Inc., 318 F.3d at 598. Meaning that if the expert’s testimony
is important to the plaintiff’s case in the eyes of the jury, then it was even more
important to the defendant that the evidence be disclosed in a timely manner. Id. at
598–99. The court find that Mr. Leslie’s testimony here goes to the heart of the issues
in this case and therefore is quite important. Based on the balancing of these four
factors, the court finds that the plaintiffs’ nondisclosure was not harmless.
Since the nondisclosure was not substantially justified or harmless, the
plaintiffs are not allowed to use Mr. Leslie as an expert or Mr. Leslie’s expert report
to supply evidence on a motion, at a hearing, or at a trial.
b. Rule 26(a)(2)(B)(i)-(vi)
The defendant also argues that the court should exclude Mr. Leslie as an
expert because his report does not comply with the requirements of Rule
26(a)(2)(B)(i)-(vi). Since the court has already held that Mr. Leslie is not allowed to
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testify as an expert in this case and that the plaintiffs cannot rely on his report, it
will not separately analyze whether his report complied with the Federal Rules of
Civil Procedure.
c. Rule 16(f)
Because the plaintiffs failed to comply with the court’s scheduling order, the
defendant requests the court order the plaintiffs to pay the attorney’s fees they
incurred pursuant to Rule 16(f). The court does not find sanctions of this kind just
under the circumstances presented here, and therefore will not impose them.
III.

Conclusion

It appears to the court that much of what Mr. Leslie would testify about in this
case would not require him to be an expert. Therefore, notwithstanding this ruling,
the plaintiffs may still call Mr. Leslie as a lay witness at trial, so long as his testimony
is compliant with Federal Rule of Evidence 701. A lay witness’s opinion that water
flows downhill, for example, is clearly within the ambit of Rule 701.
For the reasons stated herein, Cabot Oil and Gas Corporation’s Motion to
Exclude Plaintiffs’ Expert Witness [ECF No. 40] is GRANTED in part and DENIED
in part. The motion is GRANTED to the extent it requests that the court strike the
plaintiffs’ untimely disclosure of Mr. Leslie and preclude the plaintiffs from using his
expert opinion testimony and report. The motion is DENIED to the extent it requests
that the defendant be reimbursed for attorney’s fees.

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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February 13, 2018