Summary
noting that Rule 26(e)'s duty to supplement does not enable a party to circumvent Rule 26's deadlines or a court's scheduling order
Summary of this case from Whale Capital v. RidgewayOpinion
Civil Action No. 00-2155, Section "N"
May 2, 2001
ORDER AND REASONS
Before the Court is Defendant Sabine Transportation Company's Motion to Exclude Expert Report as Untimely. For the following reasons, the Motion is DENIED.
A. BACKGROUND
Plaintiff Christopher Van Baelen alleges that he was injured on October 21, 1999 while aboard the Sea Princess, a vessel operated by Defendant Sabine Transportation Company ("Sabine"). Presently at issue is whether Van Baelen complied with the Court's scheduling deadlines for producing expert reports, and, if not, what should be the appropriate remedy.
On October 27, 2000, and pursuant to Federal Rule of Civil Procedure 16, this Court entered a scheduling order, which provided, inter alia, that
Written reports of experts . . . who may be witnesses for plaintiff fully setting forth
all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for defendant as soon as possible, but in no event later than 90 days prior to Final Pretrial Conference Date.
The same order scheduled the Final Pretrial Conference Date for May 3, 2001.
On January 29, 2001, just a few days before his expert reports were due, Van Baelen filed an "Unopposed Motion to Extend Expert Reports Deadline." Van Baelen's attorney represented that good cause existed for the motion because "discovery [was] in the preliminary phase" — the plaintiff had not been deposed nor the vessel inspected. He requested and was granted a thirty day extension for both sides to submit expert reports.
On March 5, 2001, and timely in light of the foregoing order, Van Baelen provided Sabine with a "Preliminary Report" authored by Captain Emlyn Jones of Conway Marine and dated January 24, 2001. After reviewing several documents, Captain Jones opined that the Sea Princess
was not properly prepared for a ship to ship transfer. The large floating fenders would have been a lot more effective if they had been placed on the maneuvering. vessel instead of on the ship to be lightened. The position of the fenders is suspect as the two vessels came into contact.
It is usually recommended that the maneuvering ship approaches the berths with her port side to the starboard side of the other ship, which was not done in this case.
Captain Jones further stated that his report was "based upon information available at this time" and "reserve[d] the right to amend our opinion in light of future evidence."
On April 23, 2001, exactly four weeks before the scheduled trial date, Van Baelen provided Sabine with Captain Jones' "Secondary Report" dated April 21, 2001. Captain Jones reported that he had been provided "with additional information which [I] have reviewed." The background section of the Secondary Report contains more detail than the corresponding section of the Preliminary Report. Significantly, the Second Report provides a more thorough basis for Captain Jones' opinion which was lacking in the Preliminary Report. The main thrust of his opinion, that the Sea Princess "was not properly prepared for a ship to ship transfer" due to the inadequacy of the vessel's fenders, remained the same between the two reports, although the Secondary Report added a few new conclusions regarding Sabine's liability.
To date, it does not appear that Captain Jones has been deposed in connection with either of his reports.
B. LAW AND ANALYSIS
Both the Court's scheduling order described above and Federal Rule of Civil Procedure 26(a) require timely production of expert reports. A district court has discretion to exclude expert testimony and evidence, or to impose other appropriate sanctions, if a party violates its obligation to produce expert reports within the appropriate deadlines. See FED.R.Civ.P. 37(c)(1); Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572 (5th Cir. 1996). Additionally, even after a disclosure is made, Federal Rule of Civil Procedure 26(e) requires a party "who has made a disclosure under subdivision (a) . . . to supplement or correct the disclosure . . . to include information thereafter acquired if ordered by the court or in [particular] circumstances" delineated by the rule.
Sabine argues that Van Baelen failed to timely provide it with Captain Jones' Secondary Report and requests that the report and related testimony be excluded at trial. In response, Van Baelen argues that he timely produced Captain Jones' expert report and the second report was merely a "supplemental report which addresses evidence not in possession at the time of the original expert report deadline." Opp'n Mem. p. 5.
While Rule 26(e) does create a duty to supplement, a party cannot use that provision to circumvent deadlines imposed by Rule 26(a) or a court's scheduling order. As the Fifth Circuit stated in Sierra Club:
[T]he discovery order and Rule 26(a) clearly require that the initial disclosures be complete and detailed. The purpose of rebuttal and supplementary disclosures is just that — to rebut and to supplement. These disclosures are not intended toprovide an extension of the deadline by which a party must deliver the lion's share of its expert information.
73 F.3d at 572 (emphasis in original).
A comparison of Captain Jones' Preliminary and Secondary Reports shows that the latter better articulates (and perhaps offers more justification for) his expert opinion, but it would be a stretch to characterize it as providing the "lion's share" of that opinion. The Secondary Report clearly contains some new information, but Van Baelen is correct that the Secondary Report does not cover wholly uncharted territory.
As for the new information and opinions set forth in the Secondary Report, Van Baelen contends that he could not have provided the Secondary Report earlier because it "addresses evidence not in possession at the time of the original expert report deadline." Opp'n Mem. p. 5. Specifically, he claims that "it would have been impossible for Captain Jones to address the testimony of Mr. McAuliffe and Mr. Ryan in his first report because that information was not available until after this Court's expert report deadline." Id. at p. 3. Mr. McAuliffe was the captain of the Sea Princess, and in Van Baelen's opinion "likely the most important witness with regards to liability", id., and Mr. Ryan is Sabine's liability expert. Certainly these two witnesses were important to an extent; for example, some of the Secondary Report specifically rebuts Sabine's expert's report. However, had McAuliffe's testimony actually been so crucial to Captain Jones' opinion, Van Baelen should have requested an additional extension from the Court. Moreover, this does not explain why Captain Jones did not initially address much of the "additional information" that forms the basis of his second report, since it is undisputed that much of this evidence was available to Van Baelen prior to the release of Captain Jones' first report. For example, the Sabine Manual appears to have been available prior to January 2001. Similarly, two of the depositions referenced in the second report were taken after the first report was issued, but prior to the extended disclosure deadline, which suggests that a true "supplemental" report could have been submitted earlier.
Nonetheless, the Court does not find that exclusion is appropriate. The first report was uncomfortably bare-bones in light of the concerns articulated in Sierra Club, but at least some of the delay in producing the second report appears justifiable. And although common sense would indicate that the delay in receiving the information contained in the second report would prejudice Sabine's trial preparation, Van Baelen is correct that Sabine has not made a showing of any particular prejudice stemming from the late disclosure. Sabine was at least aware that Captain Jones would be challenging the configuration of the fenders such that his second report did not contain any shocking revelations. Relatedly, it appears that Sabine did not depose Captain Jones in the interim between its receipt of the first and second reports, which indicates that Sabine has not, in fact, "tailored [its] defenses and prepared for trial based on the assertions, opinions and conclusions set forth by Mr. Jones in his January 24th report," Def's Mem. p. 6, to such an extent that it cannot adequately prepare to defend against Captain Jones' opinion before trial. Additionally, Captain Jones' testimony appears to be quite important to Van Baelen's case.
The Court further finds that no alternative sanctions are warranted nor a continuance of the trial necessary at this time. If defense counsel can show that his trial preparation has been materially impeded or that he has been forced to incur unreasonable expenses because of the delay, the Court may be willing to revisit this issue.
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant Sabine Transportation Company's Motion to Exclude Expert Report as Untimely is DENIED.