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noting that a statement of compensation "can be provided in the form of a statement from plaintiff to defendants, and does not necessarily need to be written and prepared by the expert witness"
Summary of this case from Packard v. City of New YorkOpinion
94 Civ. 8294 (PKL)
February 24, 2003
Joseph G. Colao, Esq., LEADER BERKON LLP, New York, NY, Daniel J. Kelly, Esq., GADSBY HANNAH, Boston, MA, Attorneys for Plaintiff.
Brooks Banker, Jr., Esq., ABBERLEY KOOIMAN LLP, New York, New York, Attorney for Defendants.
OPINION AND ORDER
Plaintiff Raymond H. Wechsler, the administrative trustee overseeing the assets of Towers Financial Corporation ("Towers"), brings the underlying action against Hunt Health Systems, Ltd. ("Hunt Health") and affiliated entities for alleged breach of contract and fraudulent conveyance in connection with the parties' factoring agreements. Defendants have submitted letters to the Court regarding the inadequacy of the expert report submitted by plaintiffs expert, Andrew Prague, and the inadequacy of the papers submitted by plaintiff in connection with Prague's testimony, pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. Defendants request that the Court order plaintiff: (1) to serve a complete expert report prepared and signed by the expert witness which complies with the requirement of Rule 26(a)(2)(B); (2) to serve supplemental responses to defendants' first and second interrogatories; (3) to produce Mr. Prague for deposition prior to defendants' service of a rebuttal report; and (4) preclude plaintiffs submission of a "reply" to defendants' rebuttal expert report. In response, plaintiff maintains that the expert report does meet the requirements of Rule 26(a)(2)(B), as do the submission of additional documents accompanying that report, and that defendant has unduly delayed his submission of a rebuttal report, which was required to have been submitted within 30 days after the plaintiff's disclosure of the expert report on November 18, 2002, approximately three months ago. Accordingly, plaintiff has requested that the Court impose a deadline for the filing of any such rebuttal report, and set a schedule for the remaining items of expert discovery and the submission of a joint pre-trial order. The Court will address these requests in seriatim.
As this Court has previously noted, by Order of United States Bankruptcy Judge Prudence Carter Beatty dated August 5, 1999, the Towers Financial Administrative Trust was terminated and the Trust's claim against Hunt Health was assigned to Raymond H. Wechsler in his personal capacity.
I. Background
The factual background for this action has been set down in greater detail in this Court's prior decisions, familiarity with which the Court presumes See e.g., Wechsler v. Hunt Health Systems, Ltd., 198 F. Supp.2d 508 (S.D.N.Y. 2002) ("Wechsler III"). The joint pre-trial order was initially set to be submitted on November 15, 2002, but was delayed since both parties wanted to raise certain issues to the Court before the submission of the pre-trial order. Therefore, on November 18, 2002, the parties had their fourth pre-trial conference of that year, in a case that was filed over eight years ago. At that conference, defendants sought to prevent plaintiff from calling Prague as an expert witness based on plaintiffs failure to provide any indication that plaintiff would be calling an expert; plaintiffs failure to supplement their interrogatories, dated March 7, 1996 and February 19, 1997, respectively, regarding identification of an expert witness; and plaintiffs failure to submit the expert report required under Rule 26(a)(2)(B). While the Court agreed with defendants that Rule 26(a)(2)(C) intends for the identity of experts and the submission of their reports to have been made at least 90 days before the case is ready to be ready for trial, the Court found that several factors militated against imposing the Rule 37(c)(1) sanction of not permitting plaintiff to present his expert at trial. At the outset, the Court found that defendants had not been unfairly prejudiced by plaintiffs failure to supplement their interrogatory answers or to provide defendants with an expert report, because the Court did not find merit in defendants' claim of surprise at plaintiffs intention to call Prague as an expert witness at trial. The Court found that defendants had had notice of the likelihood that plaintiff would call Prague as an expert at trial since February 24, 2000, when plaintiff conceded that Prague's proposed testimony in connection with plaintiffs renewed motion for summary judgment could be construed as expert testimony, and plaintiff offered to make Prague available for deposition prior to defendant's opposition of the renewed motion for summary judgment. The defendants elected not to depose Prague at that time, and instead filed a motion to strike Prague's affidavit. In fact, in the Court's April 18, 2002 Opinion denying the defendants' Rule 37(c)(1) motion to strike the Prague affidavit, the Court concluded that there was no harm suffered by defendants in allowing the submission of the Prague affidavit since "defendants were given ample time to find their own expert to summarize and analyze the prolix accounting documents at issue in this case, and the Court attempted to obviate the need for motion practice through extending by three months defendants' time to oppose plaintiffs motion, which was based in part on the Prague affidavit." Wechsler III, 198 F. Supp.2d at 527.
While the Court did not find merit in defendants' claim of surprise, the Court did address the issue of prejudice to defendants brought about by plaintiffs failure to deliver expert's written report to defendants at least ninety days before the case was ready for trial. To assuage that prejudice, the Court allowed the defendants additional time after defendants received Prague's expert report at the pre-trial conference on November 18, 2002, to depose the plaintiff expert prior to trial and, if necessary, to add their own rebuttal expert witness in the joint pre-trial order. While the timing of defendants' deposition of plaintiffs expert, and defendants' identification of a rebuttal expert was left to the determination of the parties, the Court noted that "if it reaches the point where . . ., the case is languishing on that issue," the Court will "take the lead in fixing the schedule as may be appropriate." Transcript of November 18, 2002 pre-trial conference ("Tr. Nov. 18") at 58-59. The case has clearly so languished, due in large part to defendants' refusal to undertake adequate and timely discovery with regard to plaintiffs expert witness and to identify a rebuttal expert, if any. Therefore, as a result, the Court will set a schedule for such matters at this time.
II. Expert Discovery Dispute
On January 23, 2003, defendants sent a letter to the Court requesting a conference to address difficulties experienced in obtaining necessary disclosures from plaintiff relating to Prague. Defendants informed the Court that they found that Prague's report, delivered to them on November 18, 2002, failed to meet the requirements of Rule 26(a)(2)(B). Three weeks after receiving the expert report, defendants had informed plaintiff of their perceived infirmities with the report and requested information and documents to which defendants believed they were entitled under Rule 26(a)(2)(B). See Letter from Brooks Banker, Jr., Esq., counsel for defendants, dated December 11, 2002 ("Dec. 11 Letter"), attached as Ex. A to Letter from Daniel J. Kelly, Esq., counsel for plaintiff, to the Court, dated January 30, 2003 ("Jan. 30 Letter"). In response, plaintiff maintained that the expert report submitted was not deficient in any way, but that despite that observation, plaintiff would provide some of the additional information requested by defendants, going beyond what plaintiff believed Rule 26(a)(2)(B) required. See Letter from Mr. Kelly to Mr. Banker, dated December 17, 2002 ("Pl. Dec. 17 Letter"), attached as Ex. A to Jan 30 Letter. Furthermore, plaintiff noted that Prague had been and would continue to be made available for deposition to enable defendants to obtain any additional information that defendants required. Id. Lastly, despite defendants' failure to submit a rebuttal report within the thirty days after they received a copy of the Prague report, as required under Rule 26(a)(2)(C), plaintiff offered defendants an additional reasonable time in which to provide their rebuttal report. Id. In a letter dated December 17, 2002, defendants responded that they had not as yet retained a rebuttal expert, and would not be able to do so until Prague submits an expert report which meets the requirements of Rule 26(a)(2)(B), and until plaintiff provides defendants with the appropriate accompanying documents. See Letter from Mr. Banker to Mr. Kelly, dated December 17, 2002 ("Def Dec. 17 Letter"), attached as Ex. A to Jan. 30 Letter. Thus far, approximately three months after defendants received Prague's expert report, the defendants have yet to identify a rebuttal expert, and maintain that they need a more complete expert report, additional documents required under Rule 26(a)(2) and the supplementation of certain interrogatories, in order to identify a rebuttal expert. Appearing to be at an impasse, both parties have sought the assistance of the Court in resolving the discovery issues regarding plaintiffs submissions in connection with the Prague report, and setting a schedule for the defendants' submission of a rebuttal report.
III. Discussion
Despite the Court's reminder to the parties at the November 18, 2002 conference of its continued disappointment with the "vitriolic tone of this litigation that has proven to be, at times, quite unproductive,"Wechsler III, 198 F. Supp.2d at 530, and the parties assurance that they would attempt to work together to reach an accommodation regarding the schedule for expert discovery, the parties have continued to fail in that regard. See Tr. Nov. 18 at 3, 58-59. The Court is particularly disappointed with Mr. Banker's refusal to fulfill his obligation to conduct discovery of the plaintiffs expert, and identify any rebuttal expert to be offered by the defense. Mr. Banker himself acknowledged that, "my obligation to conduct discovery of the expert begins at the moment that I have the expert report," Tr. Nov. 18. at 24, and yet Mr. Banker has made no efforts to depose Prague or identify a rebuttal expert since receiving Prague's report on November 18, 2002. Mr. Banker maintains that he was not able to consider expert rebuttal or conduct a deposition of Prague until he received the additional submissions he believes defendants are entitled to under Rule 26(a)(2)(B). While the Court will address defendants' argument regarding these deficiencies in plaintiffs expert disclosure, the Court concludes that the information sought is not of the type that should have hampered defendants in their ability to depose Prague and to prepare their own rebuttal report.
A. Prague's Expert Report
In defendants' letter to plaintiff dated December 11, 2002, defendants informed plaintiff that they found that Prague's expert report failed in several respects to comply with Rule 26(a)(2)(B). Rule 26(a)(2)(B) states:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B). Defendants identified several respects in which they believed Prague's report failed to comply with the requirements of Rule 26, and plaintiff addressed each one of these issues. See Dec. 11 Letter; Pl Dec. 17 Letter.
Defendants argued that Prague's description of his qualifications was inadequate because he referred only to the qualifications of his firm, and did not detail how he was personally qualified to render an expert opinion. Def. Jan. 11 Letter. The Court agrees with plaintiff that Prague did adequately detail his qualifications in his report, since only one sentence from the Background and Qualifications section of his report referred to work carried out by his firm, and the rest of the section detailed Prague's personal qualifications. See Expert Report of Andrew Peter Prague, attached as Ex. A to Jan. 23 Letter ("Prague Report"), at 1-2. Defendants also took issue with Prague's omission of any publications he has made within the last ten years, or cases he has testified in within the last four years. Plaintiff responded that Prague does not list any publications or cases because he has not made any publications or testified in any cases within that time frame. See Pl Dec. 17 Letter. Therefore the report is not inadequate merely because it failed to note that Prague had not testified in any cases or issued any publications within that time frame, since Rule 26(a)(2)(B) requires only the inclusion of a list of what publications the expert did make, and which cases the expert did testify in. Fed.R.Civ.P. 26(a)(2)(B)
Defendants also made several requests for information that they believed they were entitled to under Rule 26(a)(2)(B), including: the year in which Prague completed his formal education; the identifications of which documents were reviewed by Prague personally, as opposed to his staff, and the identity of the individuals who joined him in this work; and additional support for Prague's statement in his report that he has "extensive experience in the area of partnership financial accounting and tax preparation." Dec. 11 Letter (quoting Prague Report). Mr. Kelly replied, and the Court agrees, that this information is not mandated by the requirement of Rule 26(a)(2)(B), but defendants are free to inquire about these things when defendants depose Prague. See Pl Dec. 17 Letter.
Therefore, the Court finds that the expert report is not deficient in its failure to include the aforementioned information, as plaintiff provided all that is required under Rule 26(a)(2)(B), and to the extent possible, provided additional information requested by defendants in Mr. Kelly's December 17, 2003 letter to Mr. Banker. See id. Defendants persist in arguing that the Prague report is inadequate because the provision of additional information requested by defendants was made in a letter from Mr. Kelly, and not in a signed statement by Prague. The Court finds no merit in this argument, as none of this additional information was required to have been included in the "written report prepared and signed by the witness." Moreover, to the extent that plaintiff supplemented the information provided about the total amount of compensation being provided to Prague, courts have found that this type of additional information, to which defendants are entitled, can be provided in the form of a statement from plaintiff to defendants, and does not necessarily need to be written and prepared by the expert witness.See Amster v. River Capital. Int'l Group, LLC, 2002 WL 2031614 (S.D.N.Y. 2002) (ordering plaintiff to provide defendants with a statement of the total compensation paid to the expert in connection with the litigation). Furthermore, there is no indication that the expert report submitted does not represent "a complete statement of all opinions to be expressed and the basis and reasons therefor," as alleged by defendants. Fed.R.Civ.P. 26(a)(2)(B); Letter from Mr. Banker to the Court, dated February 19, 2003 ("Feb. 19 Letter"), at 3. Nor does the Court find that plaintiff has put defendants in the position of "comparing and contrasting Mr. Prague's affidavit of January 27, 2000, with his report of November 18, 2002, to understand the opinions expressed in the expert report." Letter from Mr. Banker to the Court, dated February 20, 2003 ("Def. Feb. 20 Letter"). Plaintiff refers to Prague's January 27, 2000 affidavit not to indicate additional opinions of the expert, but rather to demonstrate that defendants did have notice of the potential that plaintiff would rely on Prague as an expert witness. Notwithstanding defendants' statement to the contrary, plaintiff has not put defendants in the position of speculating what the opinion of the expert is, what documents the expert considered in reaching that opinion, and what compensation the expert received for his analysis, because all of that information is included in the expert's report. See Prague Report; Feb. 19 Letter at 3.
See supra note 3.
B. Defendants' Additional Document Requests
In Mr. Banker's letter to the Court dated January 23, 2003, defendants asked that the Court require plaintiff to produce certain additional documents which defendants believed were required to be disclosed along with the expert report, pursuant to Rule 26(a)(2)(B). These documents include prior versions of Prague's expert report; memoranda and other materials furnished to, supplied to or utilized by Prague, his staff or his firm in connection with Prague's testimony in this matter; as well as invoices, notes and materials prepared by Prague in connection with this matter. Jan. 23 Letter. While plaintiff responded that the none of these additional documents, with the possible exception of the memoranda and other materials furnished to, supplied to or utilized by Prague, were required to be disclosed along with the expert report, plaintiff provided defendants with the requested material nonetheless. In response to defendants' request for all memoranda and materials furnished to Prague in connection with this matter, Mr. Kelly explained that plaintiff had already provided defendants with all "the data or other information considered by the witness in forming the opinions," as required under Rule 26(a)(2)(B), but plaintiff then went beyond the requirements of Rule 26 and disclosed to defendants all documents made available to Prague in connection with this matter. Fed.R.Civ.P. 26(a)(2)(B) (emphasis added). Plaintiff also agreed to provide defendants with copies of invoices relating to the preparation of Prague's report, even though such invoices are not required to be produced. As for the prior versions or drafts of the expert report, plaintiff advised defendants that there are none since it was Prague's practice to write over the existing draft on his word processing system as he worked on the report. See Jan. 30 Letter. Furthermore, plaintiff agreed to send to defendants what notes Prague might have in his files, which consist only of internal spreadsheets used by Prague and his staff to back-up the summary spreadsheets attached to Prague's report. See id. It is clear to the Court that plaintiff has done everything possible to accommodate the requests of defendants, even exceeding his obligations under Rule 26, in the hopes that defendants would move forward with the discovery of plaintiffs expert. However, thus far, defendants have failed to do so.
In support of their request for Prague's invoices, defendants cite to Amster, however the Court in Amster did not order the expert's invoices to be produced, but rather ordered plaintiffs to provide to defendants a statement of the total compensation paid to the expert in connection with the litigation. 2002 WL 2031614 at *2. Plaintiff provided the information regarding expert's total compensation in Mr. Kelly's letter to Mr. Banker dated December 17, 2002. See Pl. Dec. 17 Letter.
C. Supplementation of Expert Interrogatories
Defendants have requested that the Court order plaintiff to serve supplemental responses to a set of interrogatories asking for the identity of any expert witness who may be used at trial, and any person retained by plaintiff to review the accounts receivable, the financial condition, the creditworthiness of Hunt Health, and any damages that plaintiff has incurred. Plaintiff maintains that the defendants are aware and have been aware since the pre-trial conference on November 18, 2002, that Prague is the only person who will be used by the plaintiff to present expert testimony at trial, and as explained in his report, is the person retained by plaintiff to review Hunt Health's financial records and determine what damages plaintiff incurred. Therefore, pursuant to Rule 26(e)(2), plaintiff is not obligated to supplement these interrogatories where defendants were already aware of the updated answers. See Fed.R.Civ.P. 26(e)(2) (Supplementation of interrogatories is only required "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.")
The Court notes that if plaintiff intends to introduce an expert witness other than Prague at trial, or if additional information surfaces regarding persons retained by plaintiff to review Hunt Health's financial records and make damage determinations, plaintiff will obviously then need to supplement the aforementioned interrogatories, and will risk the Court's preclusion of those additional witnesses or that additional evidence at trial under Rule 37(c)(1) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 37(c)(1); New York State Nat. Organization for Women v. Cuomo, 1997 WL 671610, *5 (S.D.N.Y. 1997).
D. Scheduling of Deposition and Submission of Rebuttal Report
In the pre-trial conference on November 18, 2002, the Court did intend for defendants to have the opportunity to depose Prague, and perhaps even have their own expert present at the deposition, with the understanding that defendants would make their rebuttal report based in part on that discovery. See Tr. Nov. 18 at 58. Furthermore, the Court left it to the discretion of the parties to work out a schedule for the identification of a rebuttal expert, the submission of the rebuttal report and the deposition of both experts involved. The Court did so based on Mr. Banker's assurance that he understood that his obligation to conduct discovery of the expert began at the moment he had the expert report, which was provided to him at the hearing on November 18, 2002. See id. at 24. However, despite plaintiffs having made Prague available for deposition, defendants have failed to take Prague's deposition in the three months since they received the expert report. While the Court has already expressed its skepticism regarding defendants' argument that they were unable to prepare a rebuttal report without the additional information to which they believed they were entitled, it is certainly true that the absence of such information would not have hindered defendants ability to take Prague's deposition; to the contrary, defendants may have been able to obtain in Prague's deposition some of the additional information they were seeking.
Mr. Kelly informs the Court that plaintiff is indifferent as to the timing of Prague's deposition, whether it takes place before or after defendants' submission of the rebuttal report, but plaintiff does not believe that defendants' failure to take Prague's deposition should be used as an excuse to delay the service of defendants' rebuttal report.See Letter from Mr. Kelly to the Court, dated February 20, 2003 ("Pl Feb. 20 Letter"). Under Rule 26(a)(2)(C), the rebuttal report is to be made "within 30 days after the disclosure made by the other party [submission of the expert report]." Fed.R.Civ.P. 26(a)(2)(C). Since the parties have been unable to set or adhere to a schedule in accordance with the mandates of the Federal Rules of Civil Procedure, the Court will have to set such a schedule. The Court is sympathetic to defendants' argument that they are unable to prepare a rebuttal report until they depose plaintiffs expert, however Prague has been available for deposition since the moment defendants received the expert report, and defendants must have been aware that, in the absence of other direction from the Court, they would be expected to have a rebuttal report prepared within a similar time frame as that set out in Rule 26(a)(2)(C). While the Court recognizes that defendants believed that plaintiffs expert report was inadequate in some ways, defendants' identification of these "inadequacies" did not relieve them of their obligation to conduct discovery of plaintiffs expert and submit a rebuttal report, if they wish to do so, within the time frame established by the Federal Rules. Therefore, the Court is setting the following schedule:
• March 10, 2003: Deposition of Prague to be completed.
• March 24, 2003: Any rebuttal expert report to be served by defendants on plaintiff.
• April 7, 2003: Any supplementation to plaintiffs expert report, based on disclosures in defendants' rebuttal report, to be served by plaintiff on defendants.
• April 14, 2003: Joint pre-trial Memorandum to be submitted, and any depositions of defendants' rebuttal expert to be completed.
If, after Prague's deposition and plaintiffs receipt of the defendants' rebuttal report, plaintiff believes that he is under an obligation, pursuant to Rule 26(e), to supplement the Prague report in light of the opinions and factual statements contained therein, the plaintiff has the right, and is in fact under a duty, to make such a supplementation. See Fed.R.Civ.P. 26(e); Bard v. Board of Educ. of City of New York, 2002 WL 18847, *5 (S.D.N.Y. Feb. 6, 2002) (holding that "disclosures made in the course of expert discovery must be supplemented or corrected where a party later realizes that those expert disclosures were materially incomplete or incorrect"). The main reasons for these stringent supplementation requirements are to eliminate unfair surprise to the opposing party and to avoid unnecessary discovery costs. DiPirro v. United States, 43 F. Supp.2d 327, 340 (W.D.N.Y. 1999).
SO ORDERED.