Cabell v. CMH Homes, Inc. et al

Filing 94

ORDER granting 80 Joint Motion to Exclude Untimely and Incomplete Rule 26(a)(2) Disclosures; the new witnesses identified in "Plaintiffs' Final Rule 26(a)(3) Disclosures" - Owen Petershein, Elite Commercial Roofing; Josh Milam, ELM E lectrical and Contracting; Matt Westin, Calendar Construction; Paul Teumler, Certified Home Inspector; and Ryan Roggasch, Contractor - are excluded. Signed by Judge Joseph R. Goodwin on 7/15/2021. (cc: counsel of record; any unrepresented party) (kew)

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

CIVIL ACTION NO. 2:20-cv-00507

CMH HOMES, INC., et al.,
Defendants.

ORDER
Pending before the court is a Motion to Exclude Plaintiffs’ Untimely and
Incomplete Rule 26(a)(2) Disclosures. [ECF No. 80]. This motion was filed jointly by
Defendants CMH Homes, Inc.; CMH Manufacturing, Inc.; and Southern Ohio
Construction, LLC. Plaintiffs have responded [ECF No. 88], and I find that a reply by
Defendants is unnecessary to rule on the motion. The motion seeks exclusion of the
five potential expert witnesses identified in “Plaintiffs’ Final Rule 26(a)(3)
disclosures” [ECF No. 72] because that disclosure was untimely and incomplete. For
the reasons that follow, the motion is GRANTED.
At the request of the parties, I issued an amended scheduling order in this case
on May 13, 2021. [ECF No. 68]. As part of that scheduling order, Plaintiffs’ expert
witness disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2) were due on
May 21, 2021. Rule 26(a)(2) requires disclosure of the identity of an expert witness

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and a report prepared and signed by the expert. For each expert, the report must
contain (1) a complete statement of all opinions the witness will express and the basis
and reasons for them; (2) the facts or data considered by the witness in forming them;
(3) any exhibits that will be used to summarize or support them; (4) the witness’s
qualifications, including a list of all publications authored in the last 10 years; (5) a
list of all other cases in which, during the previous four years, the witness testified
as an expert at trial or by deposition; and (6) a statement of the compensation to be
paid for the study and testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). And, “[a]
party must make these disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D) (emphasis supplied).
Plaintiffs filed a Rule 26(a)(2) disclosure on March 15, 2021, which disclosed
Samuel Wood, SCE, PE, as their sole expert. [ECF No. 50]. The March 15 disclosure
complied with the requirements of Rule 26(a)(2) and Defendants do not challenge it
here. However, on May 21, 2021, Plaintiffs filed a “Supplemental Expert Witness
Disclosure” [ECF No. 69] that, though timely, did not even attempt comply with Rule
26(a)(2). The supplemental disclosure provided that “[i]n addition to Samuel Wood,
previously disclosed, Plaintiff shall be calling a Licensed Contractor to testify as to
the cost of repairing the structure at issue in this case. The name, qualifications and
substance of his/her opinions will be provided as soon as possible.” [ECF No. 80-4].
Weeks later, just four days before the deadline for Defendants’ Expert Disclosures,
Plaintiffs filed what was styled as “Final Rule 26(a)(3) Disclosures.” [ECF No. 72].
Defendants contend, however, that Plaintiffs were actually filing new or additional

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expert disclosures. Plaintiffs do not disagree with this characterization and in fact
recognize that they intend to treat the five new witnesses identified in the “final”
disclosure, in addition to Samuel Wood, as expert witnesses. In addition to being
untimely, Plaintiffs’ final expert disclosure failed almost entirely to comply with Rule
26(a)(2).
The final disclosure identified five new expert witnesses: Owen Petershein,
Elite Commercial Roofing; Josh Milam, ELM Electrical and Contracting; Matt
Westin, Calendar Construction; Paul Teumler, Certified Home Inspector; and Ryan
Roggasch, Contractor. The disclosure included estimates from Petershein [ECF No.
80-6], Milam [ECF No. 80-7], and Westin [ECF No. 80-8] for various home repairs,
but these estimates fall far short of the Rule 26(a)(2)(B) requirements for an expert
report. The estimates are not signed; they include no opinions or the basis or
reasoning for any opinions; there is no discussion of the facts or data known to the
witnesses and no discussion of evidence or exhibits; there is nothing regarding the
witnesses’ qualifications or prior expert testimony; and there is no statement about
compensation for serving as a witness. Because Plaintiffs filed incomplete and
untimely expert disclosures, they “necessarily violated” Rule 26(a)(2) and the court’s
Amended Scheduling Order.
The United States Court of Appeals for the Fourth Circuit has recognized that
the Federal Rules of Civil Procedure provide the “automatic sanction” of exclusion
when a party fails to comply with Rule 26(a). Southern States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003). Specifically, Rule

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37(c)(1) provides that when “a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or
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 has explained why this
harsh sanction is necessary and appropriate: “Rule 26 disclosures are often the
centerpiece of discovery in litigation that uses expert witnesses. A party that fails to
provide these disclosures unfairly inhibits its opponent’s ability to properly prepare,
unnecessarily prolongs litigation, and undermines the district court’s management of
the case.” Saudi v. Northrop Grumman Corp., 472 F.3d 271, 278 (4th Cir. 2005).
To overcome the automatic sanction of exclusion, Plaintiffs must show that
their noncompliance was substantially justified or harmless. To determine whether
noncompliance is substantially justified or harmless, the Fourth Circuit has said that
district courts

should be guided by the following factors: (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; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the
evidence.

Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (quoting S. States, 318 F.3d
at 596–97) (emphasis in original). The first four factors “relate mainly to the
harmlessness

exception,

while

the

remaining

factor—explanation

for

the

nondisclosure—relates primarily to the substantial justification exception.” S. States,
318 F.3d at 597.

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In their response, Plaintiffs acknowledge that they failed to comply with Rule
26(a)(2) but cite the ongoing COVID-19 pandemic in an attempt to justify their
noncompliance. Plaintiffs say they filed this action in the midst of the pandemic
“when most of the Courts were shutdown.” [ECF No. 88, at 3]. They claim that a
continuance, rather than exclusion, is the appropriate remedy “[e]specially under
these trying times where Courts were shut down for such an extended period of time.”
[ECF No. 88, at 4]. Though I cannot say whether other courts were “shut down,” this
court has remained active throughout the pandemic, albeit at times through remote
work. Plaintiffs have, at all times, had access to the court’s online CM/ECF filing
system, and they have had access to email and the postal service to serve their
disclosures to Defendants. Beyond that, Plaintiffs’ disclosures were not due until May
21 of this year. There was certainly no shut down, stay-at-home order, or lack of
internet services at that time. While I am certainly aware that the pandemic has
caused changes and some delays in court operations, I am wholly unconvinced that
Plaintiffs’ claimed but nonexistent “shut down” had anything to do with their failure
to timely file complete expert disclosures. I also note that Plaintiffs could have, at any
point prior to now, asked for a continuance if they needed more time to comply with
the Rules.
Only slightly more convincingly, Plaintiffs go on to explain that the nature of
this case requires experts in the field of construction and that the pandemic has
caused severe turmoil in that industry. Plaintiffs explain that they “have had
difficulty getting contractors to come to the house and provide quotations as to what

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it will cost to repair it” because the soaring costs of building materials has made it
nearly impossible for contractors to “give estimates that are guaranteed more than
day-to-day.” [ECF No. 88, at 3]. While I certainly recognize the hardship the pandemic
has placed on the construction industry, I am not persuaded that this substantially
justifies Plaintiffs’ noncompliance with the Rules and Amended Scheduling Order.
Notably, the three estimates Plaintiffs included in their late “Final” Disclosure are
dated September 17, 2019 [ECF No. 80-8]; February 18, 2020 [ECF No. 80-7]; and
March 2, 2020 [ECF No. 80-6]. Plaintiffs have had these estimates and therefore
known the identity of these witnesses since before the pandemic began. In fact,
Plaintiffs did not even file this case in state court until June 4, 2020. Though it would
have still been noncompliant with Rule 26(a)(2), Plaintiffs could have filed exactly
the same disclosure before the time to do so expired. Instead, Plaintiffs waited until
weeks after the deadline to disclose information that had been known to them for
over a year.
I have little trouble concluding that Plaintiffs’ noncompliance with Rule
26(a)(2) was not substantially justified. Likewise, I cannot find that the
noncompliance was harmless. Defendants were no doubt surprised when Plaintiffs
identified five new experts well after the deadline to do so and after Defendants had
already engaged experts of their own in response to Plaintiffs sole properly disclosed
expert. Though the surprise could possibly cured by a continuance, that would require
reopening discovery, delaying dispositive motions, and continuing the trial. Further,
Defendants would be required to expend significantly more time and resources to find

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and engage new experts of their own to respond to Plaintiffs new experts. Defendants
would certainly be harmed if I were to allow Plaintiffs to move forward with these
experts. I recognize Plaintiffs’ argument that these experts and the evidence that they
would provide are important to Plaintiffs’ case. But that is all the more reason
Plaintiffs should have worked diligently to comply with the Rules or, at the very least,
filed a motion to extend the deadline before it passed.
Defendants’ motion to exclude [ECF No. 80] is GRANTED. The new witnesses
identified in “Plaintiffs’ Final Rule 26(a)(3) Disclosures”—Owen Petershein, Elite
Commercial Roofing; Josh Milam, ELM Electrical and Contracting; Matt Westin,
Calendar Construction; Paul Teumler, Certified Home Inspector; and Ryan
Roggasch, Contractor—are excluded.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

ENTER: July 15, 2021

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