United States District Court, D. Connecticut
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 15th. 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 ...