Conner v. Associated Radiologists, Inc. et al
Filing
130
MEMORANDUM OPINION AND ORDER granting Plaintiff's 97 MOTION to Strike Defendants' Disclosure of Rebuttal Expert Witness. Defendants' disclosure of Mr. Pitts as an expert witness is hereby STRICKEN from the docket in this matter, and Defendants shall not use Mr. Pitts as an expert or his report to supply evidence on a motion, at a hearing, or at trial. Signed by Chief Judge Thomas E. Johnston on 2/12/2021. (cc: counsel of record; any unrepresented party) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TIMOTHY M. CONNER,
Plaintiff,
v.
CIVIL ACTION NO. 2:19-cv-00329
ASSOCIATED RADIOLOGISTS, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Timothy Conner’s (“Plaintiff”) Motion to Strike
Defendants’ Disclosure of Rebuttal Expert Witness. (ECF No. 97.) For the reasons more fully
explained below, Plaintiff’s motion is GRANTED.
I.
BACKGROUND
On July 18, 2019, this Court entered a scheduling order, (ECF No. 17), which established
a deadline for expert witness disclosures for parties bearing the burden of proof of February 21,
2020. Pursuant to this order, expert witness disclosures for parties not bearing the burden of proof
were due by March 20, 2020, and rebuttal expert disclosures were due by April 3, 2020. (Id.)
Then, on February 20, 2020, the parties filed a joint motion to modify the Court’s
scheduling order. (ECF No. 27.) This joint motion came before the initial expert witness
disclosure deadline and before any party had filed any expert witness disclosures. The Court
granted the motion and entered its first amended scheduling order on February 24, 2020. (ECF
No. 28.)
This amended order established a deadline of May 21, 2020 for expert witness
disclosures for parties bearing the burden of proof. (Id.) Disclosures for parties not bearing the
burden of proof were due by June 22, 2020, and rebuttal expert disclosures were due July 3, 2020.
(Id.) Discovery was to close July 17, 2020. (Id.)
Because 2020 involved a rapidly evolving set of circumstances due to the COVID-19
pandemic that resulted in numerous closures and lockdowns, the parties filed their second joint
motion to modify the scheduling order on June 18, 2020. (ECF No. 57.) This Court granted the
motion and entered a second, final amended scheduling order. (ECF No. 58.) This order was
entered after the initial expert witness disclosure deadline had already passed, thus it did not
address the expert disclosure deadline for parties bearing the burden of proof.
(Id.)
The
scheduling order established that expert witness disclosures for parties not bearing the burden of
proof were due by September 22, 2020, and any rebuttal expert witnesses were to be disclosed by
October 2, 2020. (Id.) Depositions were to be completed by October 16, 2020, which also
served as the close of discovery. (Id.)
Plaintiff, who bears the burden of proof on the allegations in his complaint, submitted his
Expert Witness Disclosure on May 20, 2020. (ECF No. 38.) Plaintiff’s named expert is David
M. Lipkin, MSPA, FSA (“Lipkin”), and Plaintiff served Lipkin’s expert report upon Defendants
the same date, in accordance with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. (Id.)
Lipkin’s report also addresses several issues relevant to the counterclaim against Plaintiff, for
which Plaintiff does not bear the burden of proof. (See ECF No. 97–1.) Plaintiff did not submit
a separate disclosure since Lipkin’s report already addressed the counterclaim and to file another
disclosure would have been redundant. (ECF No. 97 at 2, n.2.)
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As referenced, Defendant Associated Radiologists, Inc. (“ARI”) has asserted a
counterclaim against Plaintiff, and ARI bears the burden of proof for that claim. (See ECF No.
9.) Despite bearing that burden of proof, ARI did not disclose any expert witness by the May 21,
2020 deadline. Nor did any of the Defendants disclose an expert witness on any issue on which
they did not bear the burden of proof, the deadline of which fell on September 22, 2020.
However, Defendants did disclose an expert witness on the evening of October 2, 2020,
the deadline for disclosing rebuttal expert witnesses. (ECF No. 92.) The disclosure named
David G. Pitts, FSA, MAAA (“Pitts”), as an expert witness and contained his curriculum vitae.
The disclosure stated that Pitts would be expected to testify “as an expert in the field of pension
and benefit plans, such as the [ARI] Defined Benefit Plan at issue in this case, and the financing
and risk management of such plans,” along with the “fiduciary duties governed by the Employee
Retirement Income Security Act (ERISA).” (ECF No. 97–2 at 2.) No report or opinion of Pitts
was provided in this disclosure. 1
On October 14, 2020, Plaintiff filed his Motion to Strike Defendants’ Disclosure of
Rebuttal Expert Witness. (ECF No. 97.) On October 28, 2020, Defendants timely filed their
response in opposition to Plaintiff’s motion to strike. (ECF No. 100.) On November 4, 2020,
Plaintiff filed his reply in support. (ECF No. 102.) With the briefing on this motion complete,
it is now ripe for adjudication.
The Court notes that it appears Defendants supplemented this October 2 disclosure with a supplemental disclosure
on December 3, 2020. (ECF No. 114.) While the content of this supplemental disclosure is not known to the Court,
it presumes that this is the report and opinion of Defendants’ expert, Pitts.
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II.
LEGAL STANDARD
Pursuant to Rule 37(c) of the Federal Rules of Civil Procedure, if a party fails to disclose
a witness as required under 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 language of Rule 37 provides two exception to the general rule excluding
evidence that was not properly disclosed: When the failure to disclose is “substantially justified,”
or when the failure to disclose is harmless. Southern States Rack & Fixture, Inc. v. SherwinWilliams Co., 318 F.3d 592, 596 (4th Cir. 2003). In deciding whether a failure to disclose was
substantially justified or harmless, the reviewing court applies the following five factors: “(1) the
surprise to the party against whom the witness was to have testified; (2) the ability of the party to
cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the
explanation for the party's failure to name the witness before trial; and (5) the importance of the
testimony.” Id. (quoting Rambus, Inc. v. Infineon Technologies AG, 145 F.Supp.2d 721, 726
(E.D. Va. 2001) (internal citations and quotation omitted)).
III.
DISCUSSION
The crux of the dispute between the parties is whether Defendants’ expert is a “rebuttal
expert.” (See ECF No. 97 at ¶ 9; ECF No. 100 at ¶ 4.) If Pitts is properly considered a rebuttal
expert witness, then Defendants’ disclosure is timely. If Pitts is not, then the disclosure is
untimely, and Pitts must be struck pursuant to Rule 37(c).
In support of his motion, Plaintiff argues that the Court’s schedule is structured such that
the disclosure of experts by parties on which the party does not bear the burden of proof serves as
“responsive documents” to the initial expert disclosure. (ECF No. 97 at ¶ 9.) Therefore, Plaintiff
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argues that, in structuring disclosures this way, all parties to the action are then afforded “the
opportunity to designate a final ‘rebuttal’ expert” prior to the final expert disclosure deadline.
(Id.) The gist of Defendants’ argument is that Pitts is a rebuttal witness retained to “present his
opinions regarding Plaintiff’s ERISA fiduciary claims.” (ECF No. 100 at ¶ 9.)
Plaintiff is exactly correct with his interpretation of the structure of the Court’s scheduling
order, and Defendants’ own admission only supports this conclusion. Defendants assert that Pitts
will present his opinions on Plaintiff’s ERISA claims, claims on which Defendants do not bear the
burden of proof. Indeed, the Court’s scheduling order reads, as relevant, that “[t]he party not
bearing the burden of proof on an issue shall make the disclosures required by Fed. R. Civ. P.
26(a)(2)(A) and (B) for that issue to all other parties or their counsel no later than September 22,
2020.” (ECF No. 58 at 1.) The use of the term “shall” usually connotes a mandatory command.
See, e.g., West Virginia Highlands Conservancy v. Norton, 190 F.Supp.2d 859, 866 (S.D. W. Va.
2002) (citing United States v. Monsanto, 491 U.S. 600, 607 (1989)). Therefore, by their own
statement, Defendants reveal that their disclosure should have been made by September 22, 2020,
pursuant to the Court’s scheduling order.
Additionally, by waiting until the absolute last minute to file their expert disclosure,
Defendants violated the spirit of the Court’s scheduling order. In pertinent part, the scheduling
order reads, “All parties shall provide the disclosures required by Fed. R. Civ. P. 26(a)(2)(A) and
(B) if the evidence is intended solely to contradict or rebut evidence on the same issue identified
by another party under Fed. R. Civ. P. 26(a)(2)(B), no later than October 2, 2020.” (ECF No. 58
at 1–2 (emphasis added on “all,” emphasis in original on date).) While Defendants argue,
unconvincingly, that Pitts is a rebuttal witness pursuant to this language, their late disclosure
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deprived Plaintiff of the same benefit of this deadline. In effect, by not disclosing their witness
until this late hour, Plaintiff had no expert to rebut: But once the disclosure was made, Plaintiff
could not rebut the expert as time had expired.
The Court therefore concludes that, as to the first factor in the Rule 37(c) analysis, Plaintiff
was surprised by this late filing.
Moreover, the second factor—the ability to cure—also weighs
in favor of exclusion. As the Fourth Circuit has noted, “the ability to simply cross-examine an
expert concerning a new opinion at trial is not the ability to cure[.]” Southern States Rack &
Fixture, Inc., 318 F.3d at 598 (internal quotation omitted). As Plaintiff identified in his own
argument, “rules of expert disclosure are designed to allow an opponent to examine an expert
opinion for flaws and to develop counter-testimony through that party's own experts. Such was not
possible here.” Id. Moreover, with a last-second disclosure, “[t]here is no way to cure the fact
that the [Defendants’] expert was able to rely on the [Plaintiff’s] expert's report when creating his
own.” Brock v. Cabot Oil & Gas Corp., Civ. Action No. 2:17-cv-02331, 2018 WL 850094 at *2
(S.D. W. Va. Feb. 13, 2018).
This last point dovetails into the third factor, whether the nondisclosure would disrupt trial.
The Court believes that it would. As Plaintiff has identified, even if this Court were to accept
such a late filing, Defendants still failed to abide by the requirements of Rule 26(a)(2)(B) by not
including a written report that was prepared and signed by the witness.
Pursuant to Rule
26(a)(2)(B), the expert’s report must contain a complete statement of the expert’s opinions and the
basis for them; the facts or data considered by the expert in forming those opinions; any exhibits
the expert will use to support those opinions; the witness’s qualifications; a list of all other cases
in which the expert has testified in as an expert; and statement of compensation for the expert’s
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involvement in the case. Defendants’ disclosure, as evidenced, only satisfied one of these items,
the curriculum vitae.
(See ECF No. 97–2.) And, as discovery has already closed, Pitts’s
testimony is likely to disrupt the trial in that Plaintiff has not had the chance to depose him. See
Brock, 2018 WL 850094 at *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.”). At the time
of this briefing, discovery had closed, and Defendants had not yet submitted Pitts’s expert opinions
and report, which left little for Plaintiff to develop.2
Likewise, the importance of the testimony also weighs in favor of exclusion, as “[t]his
factor must be viewed from the perspective of both parties.” Southern States Rack & Fixture,
Inc., 318 F.3d at 598. Judge Goodwin aptly observed 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.” Brock, 2018 WL 850094 at *2 (citing Southern
States Rack & Fixture, Inc., 318 F.3d at 598–99). The same is true here. Defendants characterize
Pitts’s testimony and opinions as “vitally important” to Plaintiff’s “ERISA fiduciary claims.”
(ECF No. 100 at ¶ 9.) Those opinions, therefore, are just as important to Plaintiff such that they
should have been disclosed prior to September 22. A weighing of these four factors shows that
Defendants’ failure was not harmless.
On this point, the Court notes that Defendants “supplemented” their disclosure on December 3, 2020. (See ECF
No. 114.) Of course, their supplement can hardly be called such when Defendants failed to abide by the requirements
of Rule 26 in the first place.
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Finally, Defendants’ failure to disclose is not substantially justified in that their explanation
for their failure to timely disclose is, simply, that they did not fail. (ECF No. 100 at ¶ 4.) Their
excuses for delaying in disclosing Pitts are similarly unavailing. For example, Defendants seem
to suggest that they could not have Pitts render an opinion without first having Lipkin’s testimony.
(Id. at ¶ 6.) Yet, Lipkin’s report and opinion, as well as the facts and data they are based on, were
made available to Defendants on May 20, 2020, a period of nearly five months before Defendants’
disclosure. (See ECF No. 38.) Defendants’ explanation for the delay is simply incredible and,
as previously explained, in violation of both the letter and spirit of the Court’s scheduling order.
Because the failure to timely disclose was not harmless or substantially justified,
Defendants will not be allowed to use Mr. Pitts as an expert or his report to supply evidence on a
motion, at a hearing, or at trial pursuant to Rule 37(c) of the Federal Rules of Civil Procedure.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Strike Defendants’ Disclosure of Rebuttal
Expert Witness, (ECF No. 97), is GRANTED. Defendants’ disclosure of Mr. Pitts as an expert
witness is hereby STRICKEN from the docket in this matter, and Defendants’ shall not use Mr.
Pitts as an expert or his report to supply evidence on a motion, at a hearing, or at trial pursuant to
Rule 37(c) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
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ENTER:
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February 12, 2021
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