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Bourke v. Man Engines & Components, Inc.

United States District Court, D. Connecticut

February 23, 2016

FREDERIC A. BOURKE, JR., ET AL., Plaintiffs,



Plaintiffs, Frederic A. Bourke, Jr. and Fireman’s Fund Insurance Company (“FFIC”), bring this action against defendant, MAN Engines & Components, Inc., alleging breach of express and implied warranties arising from an engine failure on Bourke’s motoryacht. Pending before the court[1] is defendant’s motion to compel previously noticed depositions and discovery (doc. #59), and its motion to exclude plaintiffs’ late disclosed experts. (Doc. #54.) I heard oral argument on February 18, 2016. For the following reasons, defendant’s motion to compel is GRANTED and its motion to exclude experts is DENIED.

I. Motion to Compel

Defendant’s motion to compel the depositions of Bourke and his yacht captains, Patrick Kilbride and Adam Weaver, is GRANTED. See Fed.R.Civ.P. 30(a)(1) (“A party may, by oral questions, depose any person, including a party, without leave of court . . . .”). Counsel must confer and attempt to reach mutually agreeable dates for these depositions. If, despite diligent effort, counsel are unable to agree upon dates, the court will set them.

Defendant’s motion to compel the destructive testing of one of the yacht’s intercoolers also is GRANTED. By no later than February 29, 2016, plaintiffs’ counsel may delineate the additional specific information they seek concerning the testing protocol to be performed on the intercooler.[2] Defendant must respond in good faith to describe with reasonable particularity the manner of the testing. See Fed.R.Civ.P. 34(b)(1)(B).

Defendant seeks an award of the reasonable attorney fees and costs it incurred by bringing this motion. Rule 37(a)(5)(A) provides for the award of reasonable expenses, including attorney fees, when a motion to compel is granted.[3] See Fed.R.Civ.P. 37(a)(5)(A)(“[T]he court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”). The court orders plaintiffs to pay defendant’s reasonable costs and attorney fees with respect to the preparation of the motion to compel.

II. Motion to Exclude Experts

The court’s amended scheduling order (doc. #51) required plaintiffs to disclose their expert witnesses by October 1, 2015. Plaintiffs did not disclose their experts[4] until November 4, 2015. Defendant seeks to preclude plaintiffs’ experts, arguing that their late disclosure is unjustified and prejudicial.

Rule 26 requires, in relevant part, that “a party must disclose to the other parties the identity of any [expert] witness it may use at trial to present evidence.” Fed.R.Civ.P. 26(a)(2). A party’s failure to disclose an expert witness as required by Rule 26(a) means that “the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c). “[T]here is a general preference to determine issues on the merits . . ., and exclusion of an expert is a harsh remedy that should only be imposed in rare situations . . . .” Lassen v. Hoyt Livery, Inc., No. 3:13-CV-01529 (VAB), 2015 WL 2352491, at *2 (D. Conn. May 15, 2015) (citations and internal quotation marks omitted).

In determining whether to exclude expert testimony, the “severest of sanctions, ” Lassen, 2015 WL 2352491, at *2, courts in the Second Circuit consider four factors: “(1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Softel, Inc. v. Dragon Med. & Scientific Comm., Inc., 118 F.3d 955, 961. “None of these factors are dispositive and each factor is to be balanced against the others in making the determination.” Lab Crafters, Inc. v. Flow Safe, Inc., No. CV-03-4025 (SJF)(ETB), 2007 WL 7034303, at *6 (E.D.N.Y. Oct. 26, 2007).

Here, the first factor weighs in favor of preclusion. Plaintiffs have not offered a satisfactory explanation for their failure to comply with the court’s scheduling order. Plaintiffs contend that in an effort “to promote the just, speedy, and inexpensive determination of this action, ” they withheld their expert disclosures because they were engaged in settlement discussions with defendant.[5] (Doc. #56, p. 2.) The expert disclosures purportedly were ready to be served, [6] but counsel first wanted to discuss settlement, which, if successful, would have alleviated the need to disclose experts. When defendant rejected the settlement demand, plaintiffs served their expert disclosures. This explanation rings hollow. First, counsel did not even begin settlement discussions until after the due date for expert disclosures.[7] Second, plaintiffs could have, but did not, seek an extension of time in which to disclose their experts.[8] Although this factor weighs in favor of preclusion, the remaining factors weigh against it.

As to the second factor--the importance of the testimony sought to be excluded--plaintiffs assert that the experts will play a significant role in establishing the cause of the engine failure and calculating damages, both of which are central issues. The importance of this testimony weighs against preclusion.

The final two factors also weigh against preclusion. The third factor concerns the prejudice defendant would suffer as a result of having to prepare and meet the new testimony, and the fourth factor is the possibility of a continuance. The only prejudice defendant identifies is related to the timely prosecution of the case, which can be cured by the court’s continuance of the case management plan. Although the discovery deadline has passed, the case has not yet been set for trial. See Exo-Pro, Inc. v. Seirus Innovative Accessories, Inc., No. CV 05-3629(LDW)(AKT), 2008 WL 4878513, at *4 (E.D.N.Y. Feb. 19, 2008) (finding that third and fourth Softel factors weigh against preclusion where “there remains sufficient time before trial to cure any prejudice that defendant might suffer as a result of [plaintiff]’s late service of [its] expert report.”); see also Lassen, 2015 WL 2352491, at *3 (“The Court is cognizant that extended deadlines will adversely affect the progression of the case, but the Court expects that, with proper planning, communication, and cooperation among the parties, any delays would not be significant.”).

Based on the court’s balancing of the Softel factors, defendant’s motion to exclude plaintiffs’ experts is DENIED. The case management order is amended as follows: any updating and finalizing[9] of plaintiffs’ expert reports must be done by March 7, 2016; plaintiffs’ experts must be deposed by April 4, 2016; defendant’s rebuttal experts must be disclosed by April 20, 2016; and deposed by May 18, 2016. No dispositive motion will be filed unless a prefiling conference is requested; to be timely, any request for a prefiling conference must be submitted on or before April 20, 2016. A joint status report must be filed by May 19, 2016, and every 30 days thereafter until the case is ...

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