WILLIAM E. SMITH, Chief Judge.
Defendant, SMM New England, Inc. ("SMM"), moves to strike George J. Geisser, III ("Geisser"), the designated expert of Plaintiff, Providence Piers, LLC, because his expert report is inadequate under Fed. R. Civ. P. 26(a)(2)(B) and his methodology is unreliable under Fed. R. Evid. 702. (Def.'s Mot., ECF No. 91.) Although Plaintiff has undeniably failed to comply with the dictates of Rule 26(a)(2)(B) and this failure is inexcusable, this Court deems preclusion to be too severe a sanction at this juncture. Accordingly, SMM's motion is DENIED WITHOUT PREJUDICE.
Plaintiff's claims of strict liability, negligence, trespass, nuisance, and tortious interference with Plaintiff's use of its real property all arise from SMM's practice of stacking scrap on land directly adjacent to Plaintiff's property. Plaintiff alleges that the enormous weight of these scrap piles damaged the buildings on its property. After filing this action, Plaintiff submitted a claim to its insurer seeking coverage for the damage. In the course of investigating the claim, Plaintiff's insurer retained Exponent, Inc. ("Exponent"), a technical consulting firm, to investigate the cause of the damage. Exponent conducted its investigation and compiled a report detailing its investigative efforts and conclusions.
During discovery, SMM learned of the Exponent report and strove to get its hands on it. Magistrate Judge Patricia A. Sullivan ordered Plaintiff's insurer to produce the report. (ECF No. 76.) The report concluded that "differential settlement" was causing damage to the buildings on Plaintiff's property and that, although this differential settlement predated SMM's scrap-metal operations, SMM's operations exacerbated the problem.
On the deadline for disclosing its expert witnesses, Plaintiff designated Geisser as its sole expert witness. In connection with this disclosure, Plaintiff also produced Geisser's expert report. (Geisser Report, Ex. B to Def.'s Mot., ECF No. 91-3.) SMM contends that this report fails to comply with Rule 26(a)(2)(B) and that, therefore, Geisser must be precluded from testifying as an expert in this case.
Federal Rule of Civil Procedure 26(a)(2)(B) requires that, in the case of a witness "retained or specially employed to provide expert testimony in the case," a party's expert disclosure must be accompanied by a written report. Rule 26's written-report requirement is vital to ensuring that the opposing party can "prepare effectively for trial."
Rule 26 leaves no doubt about the detail that must be included in an expert report. The rule sets forth a list of the essential ingredients, including,
In this case, the exceedingly brief Geisser Report falls well short of the mark in both respects. Viewed charitably, it contains the following three discernable opinions: (1) the "soils" on SMM's property, which "are not stable or capable of supporting" the "substantially heavy load" created by SMM's scrap-metal operations, "are being pressurized, and[,] because of the close proximity to [Plaintiff's] Buildings, the supporting soil, primarily below the south walls, is being affected"; (2) "the loading placed on the unstable soils, coupled with the vibrations being caused by the work on the SMM site, are the leading contributors to the ongoing settlement affecting [Plaintiff's] Buildings"; and (3) "without proper stabilization and repair of the affected walls, a collapse of one or more of the walls will occur in the not too distant future." (Geisser Report 1-2.)
The Geisser Report utterly fails to set forth the requisite "complete statement of . . . the basis and reasons for" Geisser's opinions. Fed. R. Civ. P. 26(a)(2)(B)(i). For starters, Geisser makes no attempt to state the basis for or reasons behind the first and third opinions quoted above. Regarding his second opinion, Geisser claims to base it on his recent observations of the property and the Exponent report. However, the Geisser Report does not describe his recent observations or explain why they support his opinions. Similarly, Geisser does not identify the pertinent passages of the Exponent report — beyond offering a general explanation of the report's conclusion "that the walls and floors adjacent to the SMM property are settling due in large part to the heavy loads, and vibrations from activity on the SMM site" — or explain how the Exponent report supports his opinions. (Geisser Report 1.) Finally, although Geisser refers to a comparison of "crack-monitor" readings, his report does not relay those readings, explain how they support his opinions, or even explain what they measure.
Far from conveying "the testimony the witness is expected to present during direct examination, together with the reasons therefor," Fed. R. Civ. P. 26(a)(2)(B), adv. comm. note, 1993 Amendment, the report provides merely Geisser's bottom-line conclusions, divorced from any explanation of the supporting basis or reasons. Indeed, Plaintiff has not offered any argument that the Geisser Report complies with this aspect of Rule 26.
The Geisser Report also fails to contain "the facts or data considered by [Geisser] in forming" his opinions. Fed. R. Civ. P. 26(a)(2)(B)(ii). The Advisory Committee Note to the 2010 Amendment to Rule 26(a)(2)(B) explains that "the intention is that `facts or data' be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients."
Although the Geisser Report discloses the fact of the
Although it is readily apparent that the Geisser Report is insufficient under Rule 26, the question of the appropriate sanction for this discovery violation is not so easily resolved. Federal Rule of Civil Procedure 37(c)(1) provides that, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a). . ., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Plaintiff — the party that has committed the discovery violation — bears the burden of showing that the violation was either substantially justified or harmless.
On the substantial-justification front, Plaintiff has not contested that the Geisser Report fails to contain the requisite complete statement of the basis and reasons for Geisser's opinions. This silence speaks volumes, and it indicates that Plaintiff has no justification — let alone a substantial one — for failing to include the required explanation of the basis and reasons behind Geisser's opinions. Plaintiff also has not shown that the report's omission of facts and data is substantially justified. Although Plaintiff lists in its Opposition all of the facts and data mentioned in the Geisser report, this effort simply emphasizes that the report omits facts and data considered by Geisser, such as the substance of the crack-monitor readings, for example.
Moreover, Plaintiff betrays a patently incorrect understanding of the purposes for the expert-report requirement. Plaintiff asserts that "SMM is free to depose Mr. Geisser on what he relied upon in forming these opinions." (Plaintiff's Opposition ("Pl.'s Opp'n") 7, ECF No. 92.) However, Rule 26 envisions disclosure of a written report containing all of the specified requirements
Finally, Plaintiff failed to seasonably supplement the Geisser Report even after SMM notified Plaintiff of the report's obvious deficiencies.
Plaintiff fares no better in attempting to show that its noncompliance with Rule 26(a)(2)(B) was harmless. The Advisory Committee Note to the 1993 Amendment to Rule 37(c)(1) offers the following examples of harmless violations:
These examples "suggest a fairly limited concept of `harmless,'"
Additionally, without some remedy for the grossly inadequate Geisser Report, SMM insists that it will be forced to depose Geisser to learn the information that should have been disclosed in the report and to avoid unfair surprise at trial. (Def.'s Mot. 15 n.3.) Such a scenario undermines the purpose behind the expert-report requirement. Furthermore, Geisser's deposition could reveal information that necessitates a response from SMM's rebuttal experts, which will inevitably cause delay now that expert discovery has closed.
Because Plaintiff's noncompliance with Rule 26(a)(2)(B) was neither substantially justified nor harmless, the "baseline sanction" called for by Rule 37(c)(1) is preclusion of the witness.
In this case, although the Court is troubled by Plaintiff's profound noncompliance with Rule 26(a)(2)(B), there is some basis for concluding that the sanction of preclusion is not warranted at this time. Most importantly, Plaintiff appears to have a strong need for Geisser's expert testimony.
Additionally, the history of this litigation favors giving Plaintiff another chance. This is not a case in which Plaintiff has routinely flouted its discovery obligations and deadlines. Rather, this appears to be a one-time, albeit major, breach of the rules, arguably the result of a lack of understanding or care and not malice or bad faith.
To be sure, not all of the factors weigh against preclusion. As explained above, Plaintiff has offered no justification — substantial or otherwise — for its noncompliance. Additionally, if Plaintiff is permitted to supplement the Geisser Report, expert discovery will need to be reopened to allow SMM a reasonable amount of time to determine whether supplemental rebuttal reports are needed. Moreover, SMM will incur costs associated with reviewing Geisser's supplemental report and, if deemed reasonably necessary, compiling supplemental rebuttal reports of its own.
However, any potential prejudice to SMM that supplementation would cause can be reduced. Plaintiff has stated that, if supplementation is allowed, Geisser's opinions would not change and no new opinions would be added. (Pl.'s Opp'n 8.) In other words, any supplementation will cure the deficiencies in the original report — the absence of the basis and reasons for Geisser's opinions and the facts and data he considered in forming those opinions — and go no further.
Additionally, the limited scope of the supplementation should narrow the scope of any supplemental discovery efforts that Defendant deems necessary. Finally, taxing SMM's reasonable attorneys' fees and costs occasioned by supplementation to Plaintiff will further alleviate any prejudice.
In sum, although Plaintiff's noncompliance with Rule 26(a)(2)(B) is troubling, the possibility that preclusion of Geisser will be tantamount to a dismissal of some of Plaintiff's claims looms large. Accordingly, this Court determines that Plaintiff may supplement the Geisser Report, but, as a sanction, SMM's reasonable attorneys' fees and costs that are occasioned by supplementation will be taxed to Plaintiff. If Plaintiff fails to produce a supplemental report that complies with the particulars of Rule 26(a)(2)(B), Geisser will not be permitted to testify as an expert witness.
For these reasons, Plaintiff is ordered to produce a supplement to the Geisser Report within thirty (30) days of the date of this order. Any supplemental report will only address the deficiencies identified in this order; no alteration or additional opinions are permitted. If, at the expiration of this time period, Plaintiff has not provided a supplemental expert report that fully complies with Rule 26(a)(2)(B), Geisser will not be permitted to testify as an expert witness at trial. If Plaintiff does produce a compliant supplemental expert report, it will bear SMM's reasonable attorneys' fees and costs occasioned by that supplementation, including, but not limited to, the review of the supplemental report, the preparation of supplemental rebuttal reports, and the deposition of Geisser. SMM's motion to strike is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.