United States District Court, E.D. North Carolina, Eastern Division, In Admiralty
SHERMAN D. GOODWIN, Plaintiff and Counterclaim Defendant,
ANTOINETTE MAGEE COCKRELL, and JUDY I. SULLIVAN, Co-Executrix of the Estate of ARTHUR E. COCKRELL, Defendants and Counterclaimants.
JAMES C. FOX, Senior District Judge.
In an order filed on November 21, 2014 [DE-98], the court allowed Plaintiff Sherman D. Goodwin's motion to continue [DE-97] the reconvening of the bench trial in this matter to the term of court commencing on February 17, 2015. The court stated that it was reserving ruling on (1) Defendants' Motion to Strike the New Report of Ann T. Neulicht, Ph.D. and to Preclude Dr. Neulicht from testifying at trial [DE-91], (b) Plaintiff's Second Motion to Amend Pretrial Order Based on Newly Discovered Evidence [DE-93], and (c) Defendants' Motion to Strike Certain Portions of Sherman Goodwin's Trial Testimony [DE-96] so the parties could complete their briefing. With the briefing now being complete, these motions are ripe for ruling. Additionally, since the November 21, 2014, order, Defendants also filed a Motion for Costs Associated with the Continuance of Trial [DE-102] and Motion for Extension of Time to Complete Discovery [DE-107]. Both of these motions also are ripe for ruling.
A. Motion to Strike Dr. Neulicht's Report and Preclude Her From Testifying
As the court observed in its November 21, 2014, order, Defendants have moved to strike what they characterize as a new report they received from Dr. Neulicht, one of Plaintiff's designated opinion witnesses in this case.
Magistrate Judge Jones issued the Scheduling Order [DE-25] in this case, which provided that reports from retained opinion witnesses were due from Plaintiff on or by April 7, 2014, and from Defendants on or by May 5, 2014. The Scheduling Order also specifically provided that "[s]upplementation under Rule 26(e) must be made promptly after receipt of the information by the party or counsel, but in no event later than the close of discovery." Scheduling Order [DE-25] at 2.
Dr. Neulicht prepared her report on April 4, 2014, and Plaintiff provided Defendants with a copy of that report on April 7, 2014, in accordance with Rule 26(a)(2) and the Scheduling Order. Defendants took Dr. Neulicht's deposition on June 13, 2014, and later, on September 22, 2014, moved to exclude her testimony from this trial. As the court already has recounted, Plaintiff filed an affidavit by Dr. Neulicht in response to that motion in limine, but did not supplement her April 4, 2014, report. Defendants' motion in limine was denied in open court on November 7, 2014.
Defendants assert that on the afternoon of November 10, 2014, Plaintiff sought to supplement Dr. Neulicht's April 4 Report via an email from Plaintiff's counsel [DE-91-1]. Attached to the email was a letter from Dr. Neulicht, dated October 30, 2014, to Plaintiff's counsel, stating that she was "writing to provide an update on the above captioned file." Mot. to Strike, Ex. B [DE-91-2]. Therein, Dr. Neulicht listed additional records she reviewed since issuing the April 4, 2014, Report, as well as additional interviews she conducted. Notably, all the additional interviews and reviews occurred after Defendants moved to exclude her testimony.
Rule 26(a)(2) governs the disclosure of expert, or as this court refers to it, opinion witness testimony. The rule provides that a party's disclosures regarding an expert witness must include a report, which in tum must contain, among other things, "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them...." Fed.R.Civ.P. 26(a)(2)(B). Indeed, the Advisory Committee's Note to the 1993 amendments to Rule 26 state that the report must indicate "the testimony the witness is expected to give during direct examination, together with the reasons therefor." Fed.R.Civ.P. 26 advisory committee's note to 1993 amendments. Additionally, Rule 26(a)(2)(E) requires the parties to supplement these disclosures "when required under Rule 26(e)." That rule, in tum, provides:
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e)(2). Here, however, the Scheduling Order set forth deadlines for both the disclosure of expert reports and for any supplementation of those reports. Accordingly, the court's inquiry into whether there have been any violations is governed by Rule 16(f).
Additionally, if the court finds any violations, the question of what sanctions, if any, are appropriate also is governed by Rule 16(f). See Fed.R.Civ.P. 16(f)(1)(C) (providing for sanctions when a party "fails to obey a scheduling or other pretrial order"); see also Severn Peanut Co. v. Industrial Fumigant Co., No. 2:11-CV-14-BO, 2014 WL 198217, at *2 (E.D. N.C. Jan. 15, 2014); Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 309 (M.D. N.C. 2002). Under this rule, the court may issue "any just order, " including one imposing sanctions provided for Rule 37(b)(2)(A)(ii)-(vii). Those sanctions are as follows:
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii). "The primary focus of the Rule 16(f) analysis is whether [the disobedient party] has shown good cause for its failure to timely disclose." SMD Software, Inc. v. EMove, Inc., No. 5:08-CV-403-FL, 2013 WL 5592808, at *4 (E.D. N.C. Oct. 10, 2013) (quoting Akeva, 212 F.R.D. at 309). "If the court finds such violation without good cause, it has broad discretion in employing sanctions.'" Id. (quoting Akeva, 212 F.R.D. at 311). In determining what sanctions are appropriate, the court may consider:
(1) the explanation for the failure to obey the order; (2) the importance of the testimony; (3) the prejudice to the opposing party by allowing the disclosures; (4) the availability of alternative or lesser sanctions; (5) the interest in the expeditious resolution of the litigation; (6) a court's need to manage ...