United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge.
matter is before the court on plaintiffs' motion to
exclude or limit the expert testimony of Jennifer L. Clancy,
Ph.D. (DE # 98.) Defendant has filed a response in opposition
to the motion. (DE # 122.)
the court considers whether Dr. Clancy is a proper rebuttal
expert and, if so, whether her supplemental report is truly
supplemental. Dr. Clancy is a microbiologist who defendant
retained “to provide [an] expert opinion on
environmental sampling and analysis, ” (DE # 122-2, at
3), and designated as an expert to rebut plaintiffs'
case-in-chief expert, Shane Rogers, Ph.D. Plaintiffs argue
that, in reality, Dr. Clancy is a case-in-chief expert, and,
therefore, defendant failed to timely disclose her as such.
Plaintiffs' argument rests on their contention that Dr.
Clancy's principal report addresses an expected and
anticipated portion of plaintiffs' case-in-chief, namely
Dr. Rogers' pollution sampling and testing.
Rebuttal reports are “intended solely to contradict or
rebut evidence on the same subject matter identified by
another party . . .” Fed.R.Civ.P. 26(a)(2)(D)(ii).
“Rebuttal evidence is defined as evidence given to
explain, repel, counteract, or disprove facts given in
evidence by the opposing party.” United States v.
Stitt, 250 F.3d 878, 897 (4th Cir. 2001). “A party
may not offer testimony under the guise of
‘rebuttal' only to provide additional support for
his case in chief.” Wise v. C. R. Bard, Inc.,
No. 2:12-CV-01378, 2015 WL 461484, at *2 (S.D. W.Va. Feb. 3,
2015). Thus, “[r]ebuttal experts cannot put forth their
own theories; they must restrict their testimony to attacking
the theories offered by the adversary's experts.”
Boles v. United States, No. 1:13-CV-489, 2015 WL
1508857, at *2 (M.D. N.C. Apr. 1, 2015). . . .
[R]ebuttal reports “may cite new evidence and data so
long as the new evidence and data is offered to directly
contradict or rebut the opposing party's expert.”
Withrow v. Spears, 967 F.Supp.2d 982, 1002 (D. Del.
2013) (quoting Glass Dimensions, Inc. ex rel. Glass
Dimensions, Inc. Profit Sharing Plan & Trust v. State St.
Bank & Trust Co., 290 F.R.D. 11, 16 (D. Mass.
2013)). “Expert reports that simply address the same
general subject matter as a previously-submitted report, but
do not directly contradict or rebut the actual contents of
that prior report, do not qualify as proper rebuttal or reply
reports.” Boles, 2015 WL 1508857, at *2
(quoting Withrow, 967 F.Supp.2d at 1002); E.
Bridge Lofts Prop. Owners Ass'n, Inc. v. Crum &
Forster Specialty Ins. Co., No. 2:14-CV-2567-RMG, 2015
WL 12831677, at *1 (D.S.C. July 9, 2015).
WPS Inc. v. Am. Honda Motor Co. Inc., No.
3:16-CV-2525-CMC, 2017 WL 4216159, at *2 (D.S.C. Sept. 22,
2017) (most alterations added). “In addition,
persuasive authority counsels that, if the purpose of expert
testimony is to contradict an expected and anticipated
portion of the other party's case-in-chief, then the
witness is not a rebuttal witness or anything analogous to
one.” Boles, 2015 WL 1508857, at *2 (internal
quotation marks, citation, and alteration omitted).
Dr. Clancy's opinions regarding Dr. Rogers' methods
of field sampling and data collection, the court agrees with
defendant that those opinions are properly characterized as
rebuttal opinions. In her initial report, Dr. Clancy directly
addresses the methods Dr. Rogers used. While she may have
observed Dr. Rogers and his team sampling during site visits,
she could not fully form her opinions in this regard until
Dr. Rogers produced his report and the data underlying it.
Dr. Clancy's opinion that “Dr. Rogers has
erroneously concluded that Murphy-Brown farms are the source
of significant odors and harmful pollutants impacting the
lives of the plaintiffs, ” (DE # 122-2, at 28), it is
beyond the bounds of permissible rebuttal testimony. Such
evidence directly supports defendant's case-in-chief
theory that the Kinlaw farm is not the source of the odors
and pollutants about which plaintiffs complain and is thus
within the province of a case-in-chief expert. Cf. Scott
v. Clarke, No. 3:12-CV-00036, 2014 WL 5386882, at *3-4
(W.D. Va. Oct. 22, 2014) (where the plaintiffs alleged the
defendants were deliberately indifferent to constitutionally
deficient medical care at a correctional center and the
defendants offered medical expert testimony to support their
position that the medical care provided was constitutionally
adequate, holding such testimony “would be admissible
only as evidence constituting a fundamental part of the
[defendants'] case-in-chief; not as ‘rebuttal'
to the opinions offered by the Plaintiffs'
expert.”). Because defendant did not designate Dr.
Clancy as a case-in-chief expert, the court will exclude at
trial any of her opinions supporting defendant's
to whether Dr. Clancy properly supplemented her initial
[u]nder Rule 26(e), litigants have a duty to supplement or
correct discovery responses that are incomplete or incorrect
in some material respect, and with respect to expert reports,
a party's duty to supplement extends both to information
included in the report and to information provided during the
expert's deposition. Fed.R.Civ.P. 26(e).
Rule 26(e) envisions supplementation when a party's
discovery disclosures happen to be defective in some way so
that the disclosure is incorrect or incomplete and,
therefore, misleading. It does not cover failures or omission
because the expert did an inadequate or incomplete
preparation. To construe supplementation to apply whenever a
party wants to bolster or submit additional expert opinions
would reek [sic] havoc in docket control and amount to
unlimited expert opinion preparation.
Palmetto Pharm. LLC v. AstraZeneca Pharm. LP, No.
2:11-CV-00807-SB-JDA, 2012 WL 4369259, at *2 (D.S.C. July 18,
2012) (citing Akeva LLC v. Mizuno Corp., 212 F.R.D.
306, 310 (M.D. N.C. 2002)). “Accordingly, Rule 26(e)
permits supplemental reports only for the narrow purpose of
correcting inaccuracies or adding information that was not
available at the time of the initial report.”
WPS, 2017 WL 4216159, at *2.
time of Dr. Clancy's initial report, Dr. Rogers had not
been deposed. Dr. Clancy acknowledges her supplemental report
is not based on any new facts. (DE # 99-6, at 26.) Instead,
it is based on Dr. Rogers' opinions and statements in his
deposition testimony. (Id.) According to Dr. Clancy,
because “Dr. Rogers provided additional or different
opinions than what were included in his expert report, or
expounded, explained, or provided greater detail to opinions
that were included in his report, ” she supplemented
her report to address these items. (DE # 122-7, at 3.)
Because information from Dr. Rogers' deposition ...