E-Alert Case Updates

Leniency Given to Defendant for Missing Expert Deadlines

Pennington Partners, LLC v. Midwest Steel Holding Co.
No. WMN-09-2057 (D. Md. 2010)
By Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiffs filed a Motion to Strike the Defendant’s Supplemental Expert Disclosures for two defense experts, Robert Buchanan, Ph.D. (“Dr. Buchanan”) and Kizito Taiwo, P.E. (“Mr. Taiwo”), and to preclude them from providing testimony at trial with regard to their supplemental opinions. Defendant responded, and Plaintiffs filed a reply. The United States District Court for the District of Maryland denied Plaintiffs’ motion and ordered the parties to conclude expert discovery/disclosures as directed by the Court.

United States Magistrate Judge Paul W. Grimm requested counsel to address in their filings the facts identified in Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir. 2003), which govern the outcome of motions to preclude expert disclosures or testimony pursuant to the FED. R. CIV. P. 37(c), which they did. As for Dr. Buchanan, Plaintiffs argued that Defendant designated him as an expert long after the deadline for doing so had passed, over their objection, and without filing a motion to obtain court permission to do so. Moreover, Plaintiffs received Dr. Buchanan’s report just eleven days prior to the discovery cut-off. They claimed surprise with respect to his designation, which cannot be cured by further discovery, and argued that allowing him to testify would disrupt the not-yet-scheduled trial. Finally, they contended that Dr. Buchanan’s evidence was not that important to Defendant’s case, and that Defendant had failed to demonstrate substantial justification for failing to make timely disclosures and supplementation.

As for Mr. Taiwo, Plaintiffs stated that nearly nine months after the deadline for supplementing expert disclosures, Defendant served them with a “fourth” supplemental report as to Mr. Taiwo. Plaintiffs argued that Mr. Taiwo’s supplemental report increased the number of opinions he intended to offer at trial from three to eight. Plaintiffs also made the same arguments as to Mr. Taiwo that they did as to Dr. Buchanan.

Defendant offered elaborate rationalizations why it was substantially justified in making Dr. Buchanan’s and Mr. Taiwo’s untimely disclosures. Defendant claimed that they had to wait for data, Plaintiffs were late in providing their discovery responses, and defense counsel was unfamiliar with food safety experts which caused a delay in locating Dr. Buchanan (although this excuse was difficult for the court to take seriously given the skill and experience of defense counsel). Defendant also claimed that Plaintiffs designated four experts untimely.

Defendant did not, however, seek to extend the expert disclosure/supplementation deadlines. Rather, Defendant treated the deadlines quite casually, expecting that as long as it completed its disclosure obligations before the ultimate discovery deadline, it would be alright.

The genesis of the dispute is the casual, if not cavalier, manner in which Defendant (and possibly also Plaintiffs) treated the deadlines regarding expert discovery/disclosures. The court found it hard to fathom why, with four consent modifications to the pre-trial schedule, counsel failed to address the FED. R. CIV. P. 26(a)(2) and 26(e) expert disclosure and supplementation deadlines or to seek a court resolution when the difficulties first presented themselves. Instead, this dispute was initiated after discovery was over, when the court was at the dispositive motion stage. Thus, the court was in the untenable position of either having to re-open discovery or to allow Plaintiffs to conduct additional expert discovery and file rebuttal submissions, or else strike as untimely significant opinion testimony by Defendant’s experts on subjects that may be important to determine liability and damages. Courts issue scheduling orders specifically to avoid such dilemmas, and they are intended to be taken seriously.

In Judge Grimm’s mind, the dispositive question was whether the surprise, prejudice or harm that Plaintiffs claimed they had suffered could be remedied, without derailing the court’s effort to achieve a just and timely resolution of the case. Judge Grimm found that it was clear, under the factors articulated in Southern States, that the appropriate thing to do was to extend discovery. Accordingly, Plaintiffs’ motion was denied. Plaintiffs were permitted to conduct additional depositions of Mr. Taiwo and Dr. Buchanan within twenty-one days of the order on their supplemental opinions. In addition, Plaintiffs were permitted to file supplemental rebuttal disclosures within fourteen days after completion of each deposition.

Because Judge Grimm found that the dispute was predominantly caused by Defendant’s disregard of the scheduling order, Defendant was not permitted to conduct any further discovery of Plaintiffs’ experts regarding their final rebuttal submissions. Moreover, Judge Grimm recommended that the dispositive motions deadline not be modified, and that the parties not be permitted to supplement their filings as a result of any of the additional discovery/disclosures that he ordered.