Ice Cube Building, LLC v. Scottsdale Insurance Company

          RULING AND ORDER ON THE DEFENDANT'S MOTION FOR RELIEF REGARDING THE SUPPLEMENTAL REBUTTAL REPORT

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Introduction

         This case arises out of an insurance coverage dispute between the Plaintiff, Ice Cube Building, LLC and its insurer, Defendant Scottsdale Insurance Company, stemming from certain losses to the Plaintiff's property. Pending before the Court is the Defendant's motion to preclude the Plaintiff from using or relying upon the supplemental expert report provided to the Defendant on November 28, 2018.

         Procedural History

         Per the parties' agreed-upon scheduling order, the Plaintiff disclosed its expert, along with his report, on November 3, 2017. The Defendant disclosed its expert witnesses on July 27, 2018. Efforts to schedule the Plaintiff's expert for deposition were largely unsuccessful due to the Plaintiff's former counsel's failure to cooperate in the effort. Eventually, the parties scheduled the deposition for September 25, 2018. Around this time, the Plaintiff determined to change counsel. When the Defendant sought confirmation that the deposition was going forward, it received conflicting and inadequate responses. However, by the day before the deposition, it was clear Plaintiff's counsel had told the expert not to travel for the deposition. Notwithstanding his involvement in this series of events, Plaintiff's current counsel did not file an appearance until September 27, 2018. After substitute counsel appeared, the Defendant was again unable to obtain dates for deposing the expert. As a result, on October 12, 2018, the Defendant filed a motion to compel the deposition. In response, on October 24, 2018, the Plaintiff filed an objection to the motion to compel, as well as a motion to amend the scheduling order. In the motion to amend, the Plaintiff sought to extend several deadlines to include “the dates by which the parties' expert reports are to be designated (allowing for additional work by the experts).” The Defendant objected, citing the Plaintiff's disclosure deadline of November 2017, the significant passage of time since the Plaintiff's disclosure, and the fact that the relief requested would move the case backwards in terms of discovery.

         The Court convened a hearing on the pending motions on November 6, 2018. The Court denied the Plaintiff's request to extend the deadline to disclose a new expert report or to otherwise reset the discovery clock in the case. The Court also denied the request to move the discovery deadline. Because the deadline was January 14, 2019, it appeared to the Court that the other discovery the Plaintiff intended to undertake could be accomplished within the remaining available time.

         The Instant Motion

         On November 29, 2018, the Defendant filed an Emergency Motion for Discovery Conference related to the then-imminent deposition of the Plaintiff's disclosed expert, Dr. Hall. The Court convened a telephonic conference that same day. At the conference, the Court learned that on November 28, 2018, two days before the scheduled deposition, the Plaintiff had disclosed an updated and amended report from Dr. Hall. It was identified as a supplemental rebuttal to the Defendant's expert report. The Defendant asked the Court to preclude the expert report on a variety of grounds. The Court ordered that the deposition to go forward, but only on the previously disclosed report. The Court did so as a means of giving the Defendant's counsel the opportunity to review the report, which he had not had an opportunity to do; to give the Plaintiff the opportunity to file an opposition to the motion; to give both parties the opportunity to meet and confer in an effort to resolve the disagreement; and to allow the Court time to review the submissions, in the event no agreement was reached. It was further ordered that if no agreement could be reached, and the Court were to allow the new expert disclosure, the deposition would be reconvened at a to-be-determined cost to the Plaintiff because of the untimely disclosure.

         Discussion

         The Court's first task is to determine whether the supplemental report is (a) an untimely expert disclosure which the Court precluded at the November 6, 2018 hearing; (b) a rebuttal report pursuant to Rule 26; or (c) a supplemental report necessitated by the discovery of previously unknown and unavailable information, which renders the original opinion inaccurate or misleading.

         The Plaintiff argues that the supplemental report is a combination of a rebuttal of the Defendant's experts and a supplemental report based upon a review of materials not reviewed and unavailable in advance of the prior disclosure. The Plaintiff denies that the supplemental report is an effort to change or expand the opinions contained in the original report. The Defendant argues first that the purported “rebuttal” is an expansion of the opinions contained in the original report; and second, that the Plaintiff's purported need for supplementation based upon newly-discovered information fails largely because the majority of the information cited in the supplemental report was available to the expert when he issued his original report.

         When an expert disclosure is not timely, the Court considers four factors to determine whether to preclude the expert's testimony: (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. &Sciu. Commc'ns. Inc., 118 F.3d 955, 961 (1997). This Court already denied the Plaintiff's request that it be permitted to disclose an amended or new expert disclosure beyond the time permitted under the scheduling order. So if the Court determines that the supplemental report falls into this category, additional analysis of the Softel factors is not warranted. These factors were discussed on November 6, 2018 and supported the Court's denial of the Plaintiff's request.

         On November 6, 2018, the Plaintiff stated its intention of disclosing an updated expert disclosure. The hearing began with the Court trying to pin down a date for Dr. Hall's deposition:

Mr. Bonnano: Your Honor, I don't know what date he's available for his deposition. I believe he's here next week for an inspection on the 15^th. Counsel has been advised that he's going to be doing the inspection, or a follow-up inspection of the building, and I offered dates ...