United States District Court, D. Connecticut
MICHAEL M. SIROIS and ALICIA M. SIROIS Plaintiffs,
v.
USAA CASUALTY INSURANCE COMPANY Defendant.
RULING ON MOTION TO PRECLUDE EXPERT
TESTIMONY
MICHAEL P. SHEA, U.S.D.J.
Plaintiffs
Michael L. Sirois and Alicia M. Sirois filed this action
against their homeowner's insurance provider, USAA
Casualty Insurance Company (“USAA”), for failure
to pay for damages to the basement walls of their home caused
by cracking and deterioration in the concrete. On October 7,
2016, I entered a scheduling order for the case. (ECF No.
22.) The order set discovery to close on October 1, 2017 and
required that the damages analysis be completed by April 15,
2017. (Id.) After two extensions of time to complete
discovery, the Defendant moved for summary judgment on
February 28, 2018. (ECF No. 49.) I granted the motion in part
and denied it in part on September 18, 2018 (ECF No. 70) and
subsequently held a telephonic status conference in which I
scheduled jury selection for June 12, 2019. (ECF No. 78.) On
the call, defense counsel explained that the Plaintiffs had
recently disclosed a new expert on damages and requested an
opportunity to take additional discovery. I instructed the
parties to file a joint statement proposing an amended
schedule for discovery within 14 days. (Id.) The
Defendant instead filed a motion in limine to preclude the
Plaintiffs from designating the new expert or relying on his
testimony at trial. (ECF No. 80.) I find that the
Plaintiffs' disclosure was untimely, but the
“extreme sanction of preclusion” is not required
to prevent prejudice to the Defendant. See Outley v. City
of New York, 837 F.2d 587, 591 (2d Cir. 1988). The
motion is therefore DENIED.
I.
Discussion
The
Federal Rules of Civil Procedure require disclosure of expert
testimony “at the times and in the sequence that the
court orders, ” or, in the absence of a court order or
stipulation, “at least 90 days before the date set for
trial.” Fed.R.Civ.P. 26(a)(2)(D)(i). A party that fails
to make a timely disclosure “is not allowed to use that
information or witness to supply evidence . . . at trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). Precluding expert
testimony is an “extreme sanction, ”
Outley, 837 F.2d at 591. Thus, courts must consider
the following four factors before imposing it:
“(1) the party's explanation for the failure to
comply with the [disclosure requirement]; (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, ”
Vioni v. Providence Inv. Mgmt., LLC, No. 17-2572-CV,
2018 WL 4353826, at *2 (2d Cir. Sept. 12, 2018). The
Plaintiffs do not contend that their expert disclosure was
timely. I must therefore determine whether preclusion is
required. I consider each of the above factors in turn.
First,
the Plaintiffs' explanation for failing to comply with
the deadline for disclosure is weak. They assert that parties
in this type of concrete-decay case “often, if not
routinely, beg off damages discovery until after a decision
for the homeowner on summary judgment.” (Pl. Brief, ECF
No. 85 at 4.) They acknowledge, however, that the parties in
this case had no specific agreement to that effect. They
never proposed any alternative schedule to the Court, and
their usual, informal practices would not excuse
noncompliance with a court order or the Federal Rules.
Second,
the proposed testimony is significant for this case. The
parties agree that the Plaintiffs will have the burden of
proving that the Defendant's breach of contract caused
damages and will need to demonstrate the amount of damages.
(Def. Brief, ECF No. 80-2) (“It is axiomatic in a case
such as this, a damages claim must be supported by
documentation and other relevant evidence.); (Pl. Brief, ECF
No. 85) (“Demonstrating damages is an element of a
claim for breach of contract.”).
Third,
the prejudice the Defendant will face in meeting the new
testimony is minimal. Current defense counsel received the
new expert's damages quote on September 28, 2018 (Def.
Email Exchange, ECF No. 80-6 at 1), and the Plaintiffs
formally disclosed their intent to call him as an expert on
November 9, 2018, (Expert Disclosure, ECF No. 85-2.) The
default time for expert disclosure before trial under the
Federal Rules is 90 days. Here, the Defendants will have had
more than seven months to prepare a response to the
new expert's testimony. Further, the damages analysis
disclosed in the expert's report, dated October 18 but
apparently provided to defense counsel on November 9, is not
especially complicated: It describes the work to be done in
removing the basement walls in the Sirois' home and
associated excavation and ancillary work, and provides price
estimates. Further, the proposed expert offers new testimony
on the amount of damages, but the Plaintiffs disclosed their
theory of damages years ago. (See Grandpré Report, ECF
No. 80-4 at 4 (expert report dated June 1, 2017 asserting
that “the only viable action” to address the
concrete damage “is to remove the deteriorated concrete
basement walls and replace them.”); see also Def.
Brief, ECF No. 80-2 at 5-6) (quoting Plaintiffs' response
to Interrogatory #6 in which they described the process
required for removing and replacing the concrete walls and
offered a rough estimate of the cost).) Under these
circumstances, it strains credulity to assert that deposing
the designated expert and retaining an expert to rebut that
witness's testimony could not be accomplished in 90 days.
The Defendants have had, and still have, ample opportunity to
consider and contest the Plaintiffs' damages claims.
Finally,
I will not grant a continuance in this case as I find that no
continuance is necessary-the trial date is still nearly five
months away. Nonetheless, I will modify the schedule to
ensure that the Defendant has an adequate opportunity to
contest the opinions of the new expert. The Plaintiffs shall
provide a damages analysis by January 31, 2019. The Defendant
will have until March 31, 2019 to depose the Plaintiffs'
new damages expert and disclose (and provide a report from) a
rebuttal expert. The Plaintiffs will have until April 22,
2019 to depose the rebuttal expert. The Joint Trial
Memorandum will be due on May 15, 2019. Motions in limine
will be filed with the Joint Trial Memorandum, and responses
will be due by May 22, 2019. The Pre-Trial Conference will be
held on May 30, 2019 at 10:00 AM. Jury selection remains
scheduled for June 12, 2019.
II.
Conclusion
In sum,
the first factor weighs in favor of precluding the testimony
of the Plaintiffs' proposed expert while the remaining
three weigh in favor of allowing it. The disclosure will
therefore be allowed notwithstanding my conclusion that it
was untimely. The ...