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.
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