E-Alert Case Updates

United States District Court for the District of Columbia Denied Plaintiff’s Motion to Strike Defendants’ Expert as an Excessively Harsh Remedy

Robinson v. District of Columbia
___ F.Supp.3d ___ (D. D.C. Dec. 2, 2014)
by Wayne C. Heavener, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv2294-90

In Robinson v. District of Columbia, the United States District Court for the District of Columbia denied a motor vehicle accident plaintiff’s motion to strike municipal defendants’ accident reconstruction expert’s testimony for the defendants’ failure to disclose certain bases of their expert’s opinion by the Court’s deadline. Writing for the Court, Judge James E. Boasberg held that a majority of the information that defendants failed to disclose by the Court’s deadline was ultimately provided to the plaintiff prior to the expert’s deposition. The defendants’ failure to provide this information by the Court’s disclosure date did not, therefore, prejudice the plaintiff’s case. The Court did find, however, that the plaintiff was prejudiced by the defendants’ failure to disclose the expert’s accident reconstruction models prior to deposition. The Court held that striking the expert’s testimony was too harsh a penalty for the defendants’ actions, and instead permitted the plaintiff to reopen the expert’s deposition to inquire further about the defendants’ accident models.

This case arose out of a motor vehicle accident involving Arnell Robinson and an unmarked District of Columbia Police Department police car on March 6, 2009. Mr. Robinson died in the collision, and his mother, Caroline Robinson (“Plaintiff”), filed suit against the Metropolitan Police Department officer involved in the accident, as well as the District of Columbia (collectively, “Defendants”). Over the course of the parties’ litigation, Plaintiff and Defendants made multiple requests that deadlines for expert reports and expert discovery be extended. Ultimately, the designations for Defendants’ experts were due on June 28, 2013, and depositions of Defendants’ experts were to take place by May 1, 2014. Defendants retained Wendell Cover to evaluate and reconstruct the motor vehicle collision. Defendants provided a copy of Mr. Cover’s report to Plaintiff on February 21, 2015, but failed to make Mr. Cover available for deposition by the May 1, 2014, deadline. Plaintiff filed a motion to strike Mr. Cover’s report and testimony on the grounds that Defendants failed to make him available for deposition. The Court denied Plaintiff’s motion, and ordered that Mr. Cover be deposed in early June 2014. Mr. Cover arrived at his deposition with photographs, diagrams, and at least two (2) models that required proprietary software to view. Shortly after the deposition, Plaintiff filed another motion to strike premised upon Defendants’ alleged failure to provide the bases and reasons for Mr. Cover’s opinion. Specifically, Plaintiff argued that Defendants failed to obey disclosure requirements by not providing Mr. Cover’s curriculum vitae or a list of cases in which he was involved by the June 28, 2013, court-mandated deadline, and by not providing Mr. Cover’s photographs and models prior to his deposition.

The Court denied Plaintiff’s motion to strike, holding that such a penalty was too draconian for Defendants’ alleged discovery failures. The Court noted that FED. R. CIV. P. 26 governed Defendants’ disclosure requirements, which included the substance of the expert’s opinions and “basis and reasons for them.” Id. Federal Rule of Civil Procedure 37, in turn, permits the imposition of sanctions for failure to comply with discovery, unless the failure was “substantially justified or is harmless.” FED. R. CIV. P. 37. The Court acknowledged that Defendants failed to provide Plaintiff with Mr. Cover’s curriculum vitae by the Court’s disclosure deadline, but likewise observed that Plaintiff ultimately received Mr. Cover’s curriculum vitae several weeks in advance of his June 2014 deposition. The Court held that there was no harm to Plaintiff because Plaintiff was not prejudiced by Defendants’ failure to disclose Mr. Cover’s curriculum vitae by June 28, 2013 given Plaintiff’s counsel received the document several weeks in advance of the deposition. Similarly, Plaintiff received Mr. Cover’s list of cases several weeks prior to his deposition, and was therefore not prejudiced by Defendants’ failure to abide by the June 28, 2013 deadline. The Court did find, however, that Defendants’ failure to disclose Mr. Cover’s diagrams and models prior to deposition did prejudiced Plaintiff because Plaintiff’s counsel was unable to consult her experts prior to re-deposing Mr. Cover. The Court held that striking Mr. Cover as Defendants’ expert was too harsh a penalty, and found that Plaintiff could reopen Mr. Cover’s deposition for two (2) additional hours regarding the accident reconstruction models.