JAMES L. ROBART, District Judge.
Before the court are three motions by Defendant LTK Consulting Services, Inc. ("LTK"): (1) LTK's motion to exclude the testimony of Plaintiff Affiliated FM Insurance Company's ("AFM") expert witness, Paul Way (Way Mot. (Dkt. # 174)), (2) LTK's motion to exclude the testimony of AFM's expert witness, Eric Rongren (Rongren Mot. (Dkt. # 175)), and (3) LTK's motion to exclude the testimony of AFM's expert witness, John Dexter (Dexter Mot. (Dkt. # 176)).
This action arises out of a fire that occurred on May 31, 2004, and damaged the Blue and Red Trains of Seattle Monorail as the Blue Train was leaving the Seattle Center Station. (See Not. of Rem. (Dkt. # 1) at 7 (Compl. ¶¶ 1.1, 3.2).) AFM paid its insured, Seattle Monorail Service ("SMS"), $3,267,861.00 for damages resulting from the fire. (Id. ¶ 5.1.) AFM, as the subrogee of SMS, brings this action against LTK, which is an engineering firm that conducted work with respect to the Monorail. (Id.)
Following the May 31, 2004, fire, Booz Allen Hamilton ("Booz Allen") prepared a "Fire Safety Assessment" ("FSA") report, which contains a number of recommendations purporting to improve the safety of the Monorail. (Dexter Mot. Ex. A1.) A significant portion of SMS's alleged damages related to the fire consisted of the costs involved in implementing the recommendations contained in the FSA report. (Wahota Decl. (Dkt. # 52) Ex. 5 ("AFM's Interrogatory Ans.") at 9 (No. 15) (indicating the cost to comply with the FSA report totaled $2,100,000.00).)
Based on Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), LTK challenges the admission of testimony from three witnesses that AFM has designated as experts in this matter. First, LTK challenges that admission of testimony from AFM's expert witness, Paul Way. In his November 6, 2013, expert report, Mr. Way states that LTK negligently performed professional engineering services by not recommending that the grounding system for the Monorail be converted from a "grounded" or "bonded" system to a "floating" system, and he offers a number of opinions related to the contention that a "grounded" or "bonded" grounding system is improper, unsafe, and/or negligent and that a "floating" grounding system is not. (See Way Mot. at 2-3; see generally AFM's 2d Exp. Disclosures (Dkt. # 151) Ex. 3 ("Way Report") at 29-49).)
LTK also challenges the admission of testimony from Eric Rongren, another of AFM's designated expert witnesses. (See Rongren Mot. 1-3.) AFM has designated Mr. Rongren to testify regarding the type of grounding system that was present on the Monorail at the time King County Metro operated the system. Mr. Rongren will testify that the grounding system was "floating" during the time he worked as a maintenance manager for the Monorail between 1986 and 1994. (AFM's 2d Expert Disclosures (Dkt. # 151) at 2-3.)
Finally, LTK challenges the admission of testimony from AFM's expert witness, John Dexter. (Dexter Mot. at 1-3.) AFM has disclosed Mr. Dexter as an expert witness for the purpose of testifying regarding the substance of the FSA report. Specifically, AFM's expert witness disclosure states:
(AFM's 2d Expert Disclosures at 4-5.) The court considers each challenge based on the written submissions of the parties and the testimony and argument presented at the April 15, 2014, hearing.
Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony in federal court:
Fed. R. Evid. 702. "Rule 702 . . . require[s] that `[e]xpert testimony . . . be both relevant and reliable.'" Estate of Henry Barbain v. Astenjohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting (United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001)).
"Relevancy simply requires that `[t]he evidence . . . logically advance a material aspect of the party's case.'" Id. (quoting Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)). Reliability requires the court to assess "whether an expert's testimony has `a reliable basis in the knowledge and experience of the relevant discipline.'" Id. (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (citation and alterations omitted)). The court is concerned not with the correctness of the expert's conclusions but the soundness of the methodology. Id. The court must act as a gate keeper to exclude "junk science" that does not meet Rule 702's reliability standards. Id. (quoting Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011)).
The Supreme Court has clarified that the reliability standard is "a flexible one." Kumho Tire, 526 U.S. at 150. The Court has suggested several factors that can be used to determine reliability: (1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific community. Estate of Henry Barbain, 740 F.3d at 463 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993)). However, whether these specific factors are "reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. (citing Kumho Tire, 526 U.S. at 153).
The court notes that LTK has not challenged the testimony of Mr. Way, Mr. Rongren, or Mr. Dexter based on the relevancy prong of Rule 702. (See generally Way Mot., Rongren Mot., Dexter Mot.) In any event, based on its review of the parties' written submissions and the testimony and argument presented at the April 15, 2014, hearing, the court finds that the testimony of these witnesses is relevant and (if found to be reliable) may assist the trier of fact. Thus, the only issue before the court regarding the admissibility of these witnesses' proposed expert testimony is its reliability under Rule 702.
Mr. Way asserts a number of opinions involving the notion that a "bonded" grounding system is improper, unsafe or negligent for use on the Monorail. (Way Report ¶¶ 5.1, 5.4-5.5, 5.7.) Although Mr. Way is an electrical engineer, LTK challenges these opinions on the ground that Mr. Way's expertise is not developed in the area of mass transit vehicles. (Way Mot. at 7, 9.) Indeed, Mr. Way acknowledged in the course of his deposition that he has never been responsible for designing a grounding system on a mass transit vehicle nor been involved in analyzing the propriety of a floating grounding system versus a grounded grounding system prior to this litigation. (Way Dep. (Dkt. # 174-1) at 12:20-13:3.)
Mr. Way has a depth of electrical engineering experience that includes designing grounding systems for petrochemical facilities, sewage treatment plants, water pump stations, crude oil pipelines, oil refineries, power plants, and electrical power substations. He has received specialized training in grounding and bonding microwave and telecommunications facilities. He has been trained in ground system testing and evaluation and has completed hundreds of field tests on installed ground system effectiveness. He has been hired as an electrical engineer consultant with regard to proper grounding and bonding of electrical equipment for marine transportation systems and for the King County Metro. Over the course of his career, Mr. Way has completed failure investigations involving electrical power, grounding, and bonding issues on fixed facility, transportation, industrial, commercial, and residential electrical systems.
LTK asserts that, despite Mr. Way's qualifications as an electrical engineer in general, because he has no particular experience pertaining to grounding systems for mass transit vehicles, he is not qualified to propone any opinions concerning the grounding system on the Monorail. (See Way Mot. at 7, 9.) Rule 702, however, "contemplates a broad conception of expert qualifications." Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1018 (9th Cir. 2004) (italics in original) (quoting Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). Any deficiency in Mr. Way's particularized expertise goes to the weight that should be accorded his testimony, and not the admissibility of his opinion as an expert witness. See United States v. Garcia, 7 F.3d 885, 889-90 (9th Cir. 1993).
In addition, LTK asserts that the reliability of Mr. Way's opinions are undermined by the fact they were not developed independent of his retention by AFM for purposes of testifying in this litigation and have not been peer reviewed. (Way Mot. at 8.) LTK asserts that because Mr. Way's opinions lack these indicators of reliability, he must explain precisely how he reached his conclusions and point to some objective source—a learned treatise, a policy statement of a professional association, a published article in a reputable scientific journal, or the like, in support of his opinions. (Id. at 8-9 (citing Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318-19 (9th Cir. 1995) ("Daubert II").)
The Ninth Circuit has held that "whether [expert witnesses] have developed their opinions expressly for testifying" is a "very significant fact to be considered" in evaluating the admissibility of an expert witness's testimony. Wornick, 264 F.3d at 841. Here, however, Mr. Way testifies that his opinions are reliable and admissible because he followed National Fire Protection Association ("NFPA") standards, specifically NFPA 921, in performing his analysis. (See generally Way Report.) The purpose of NFPA 921 is to establish guidelines and recommendations for the safe and systematic investigation and analysis of fires. LTK argues that this standard and form of analysis are not appropriate in a case involving a dispute over whether a grounding system caused the fire at issue. (Way Reply (Dkt. # 185) at 4-5.) Nevertheless, numerous courts have found NFPA to be an acceptable guide for fire investigation methodology. See Schlesinger v. United States, 898 F.Supp.2d 489, 504 (E.D.N.Y. 2012) (collecting cases); Russ v. Safeco Ins. Co., No. 2:11cv195-KS-MTP, 2013 WL 1310501, at *24 (S.D. Miss. Mar. 26, 2013) (collecting cases); Tunnell v. Ford Motor Co., 330 F.Supp.2d 731, 739-41 (W.D. Va. 2004) (admitting expert opinions from electrical engineer who employed NFPA 921 in investigating fire whose origins were allegedly electrical). Despite the fact that Mr. Way reached his opinions herein solely as a result of his retention by AFM in this litigation, his adherence to a recognized industry method and standard, specifically NFPA 921, undergirds the reliability of his opinions concerning the origins of the fire in a manner that suffices for purposes of admissibility under Rule 702 or Daubert. The court, therefore, finds that, in addition to being relevant, this portion of Mr. Way's expert testimony also meets the reliability standard of Rule 702. Accordingly, the court denies LTK's motion as it relates to this portion of Mr. Way's expert testimony.
In addition, however, LTK also challenges Mr. Way's opinion 5.2, in which he states that "[t]he Monorail was operated for approximately 27 years with a floating body grounding system without a major electrical fault incident." (Way Report ¶ 5.2.) LTK asserts that, on its face, opinion 5.2 is a fact statement and not an opinion. LTK objects that opinion 5.2 is "the result of observational evidence that could be provided by a lay person, and its presentation by an expert cannot be said to `help the trier of fact to understand the evidence or to determine a fact in issue.'" (Way Mot. at 10 (citing Fed. R. Evid. 702).) AFM offered no written response to this portion of LTK's motion to exclude Mr. Way's expert opinion 5.2.
AFM has designated Mr. Rongren to testify as an expert witness offering the opinion that the Seattle Monorail employed a "floating" grounding system from 1986 to 1994. Specifically, Mr. Rongren's expert disclosure states:
(AFM's 2d Expert Disclosures at 2-3.)
LTK has moved to exclude Mr. Rongren's testimony in this regard on two grounds. First, LTK has moved to exclude Mr. Rongren on grounds that he has disclaimed any expertise in electrical engineering. (See Rongren Mot. at 5-6 (citing Rongren Dep. (Dkt. # 175-1) at 12:9-23.) Second, LTK has moved to exclude Mr. Rongren's testimony as an expert witness based on admissions he made during his deposition specifically disclaiming any qualification to testify as to how the Monorail was actually grounded during his tenure with King County Metro. (See id. at 6-8.)
AFM asserts in response that Mr. Rongren is qualified to testify based on his experience as a maintenance manager for the Monorail from 1984 to 1994 and "his review of the original drawings for the Monorail and maintenance of the electrical system and components for the Monorail for ten years." (Resp. (Dkt. # 180) at 13-14.) The court agrees that the text of Federal Rule of Evidence 702 expressly contemplates that an expert may be qualified on the basis of experience. See Fed. R. Evid. 702. Further, the Committee Notes on the 2000 Amendments to Federal Rule of Evidence 702 state that "[n]othing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training or education—may not provide a sufficient foundation for expert testimony." Fed. R. Civ. P. 702, Advisory Committee Notes, 2000 Amendments ("Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.").
If the level of Mr. Rongren's qualifications were the only basis of LTK's challenge to his expert testimony, then LTK's motion might well fail. The Advisory Committee Notes to Rule 702, however, go onto state that "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Id.; see also United States v. Hermanek, 289 F.3d 1076, 1096 (9th Cir. 2002) (citing Rule 702 Advisory Committee Notes in requiring expert relying on experience to explain his methodology). It is with respect to this requirement that AFM's advocacy for Mr. Rongren's expert testimony stumbles. LTK has not relied simply on criticism of Mr. Rongren's qualifications, but has also points to testimony in which Mr. Rongren expressly disclaims any qualification for opining as to the actual configuration of the grounding system for the Monorail. Specifically, Mr. Rongren has testified as follows:
(Pierson Decl. (Dkt. # 178) Ex. E (Rongren Dep.) at 137:15-139:9.)
In addition to the foregoing testimony, Mr. Rongren offered other testimony which confirms that (1) he bases his opinion that the Monorail utilized a floating and not bonded grounding system primarily upon his review of the Monorail's original drawings years after his tenure at King County Metro was over and (2) he never undertook any investigation during his tenure at King County Metro with respect to the actual configuration of the Monorail's grounding system:
(Rongren Dep. at 95:9-97:5.)
Although AFM insists in its response to LTK's motion that Mr. Rongren's experience qualifies him as an expert witness, AFM never addresses in any way the foregoing testimony in which Mr. Rongren explicitly disavows any investigation of, expert qualification for, or opinion as to the Monorail's actual grounding system. (See generally Resp.) Although it is clear that Mr. Rongren believes based on his review of the Monorail's original drawings that the Seattle Monorail employed a floating grounding system (Rongren Dep. at 139:10-24), whether Mr. Rongren is qualified as an expert based on his experience as a maintenance manager at King County Metro to interpret the type of grounding system depicted in the Monorail's original drawings is not an issue before the court because this is not the purpose for which AFM designated him as an expert witness. AFM designated Mr. Rongren as an expert who would "testify that the Seattle Monorail employed a `floating' grounding system during his entire career working on the Monorail for Metro." (AFM's 2d Expert Disclosures at 2-3.) Mr. Rongren is not qualified to testify as an expert as to the Monorail's actual grounding system during that period of time—particularly in light of his unequivocal repudiation of any investigation into, expert qualification for, or opinion on the issue. Accordingly, the court grants LTK's motion to exclude expert testimony from Mr. Rongren concerning the actual grounding configuration of the Monorail.
The court notes, however, that even if Mr. Rongren is not qualified to testify on the topic for which AFM's counsel designated him as an expert witness, he may have other relevant factual testimony to offer with respect to the parties' dispute. The court has not been asked to rule on the admissibility of Mr. Rongren's testimony as a fact witness and nothing in this order should be construed as doing so.
AFM designated Mr. Dexter as an expert witness "to present evidence under [Federal Rule of Evidence] 702, 703, or 705." (AFM's 2d Expert Disclosures at 1, 4-5.) If the expert witness is not required to provide a written report, then absent a stipulation or court order, Federal Rule of Civil Procedure 26(a)(2)(C) requires a party's expert witness disclosure to state "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C)(i), (ii). AFM's disclosure concerning Mr. Dexter stated, in total, as follows:
(AFM's 2d Expert Disclosures at 4-5.)
AFM has moved to exclude Mr. Dexter as an expert witness on grounds that during his deposition Mr. Dexter acknowledged that he had no basis for testifying as an expert regarding any of the material contained in the Final Safety Assessment or Fire Safety Assessment ("FSA").
During his deposition, Mr. Dexter testified that he did not perform any of the analysis in the FSA report or participate in its actual drafting:
(Dexter Dep. at 61:24-64:23.)
As Mr. Dexter explained in another portion of his deposition, he did not perform any work related to fire safety engineering while he worked at Booz Allen, either before or during the Monorail project:
(Id. at 17:6-12.)
Mr. Dexter's testimony also confirms that any opinions he has concerning the FSA's recommendations are speculative at best and do not have a reliable basis sufficient for admission under Federal Rule of Evidence 702. He testified as follows:
A: That's correct.
(Id. at 65:19-66:18.)
Finally, Mr. Dexter unequivocally agreed that he was not qualified to render an opinion regarding the recommendations in the FSA report:
(Id. at 67:15-68:15.)
Based on the foregoing testimony, the court would be hard pressed to find Mr. Dexter qualified to testify as an expert under Federal Rule of Evidence 702 pursuant to the description provided in AFM's expert witness disclosure. AFM's disclosure specifically states that "Mr. Dexter's opinions and the bases for them are contained in the Final Safety Assessment Report dated March 29, 2005." (AFM's 2d Expert Disclosures at 5.) Mr. Dexter has expressly disavowed that he performed any of the analysis contained in the FSA report, he has acknowledged that he lacks the technical expertise or experience to opine concerning the recommendations contained in the report, and to the extent the report contains his opinions, he has acknowledged that such opinions are based at least in part on his "intuition" and "faith" in work done by others. This testimony falls woefully short of the standards set forth in Rule 702 that an expert's scientific and technical knowledge "will help the trier of fact to understand the evidence," that the expert's testimony "is based on sufficient facts and data," that the expert's testimony "is the product of reliable principles and methods" (as opposed to intuition and faith), and that "the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702(a), (b), (c), (d).
AFM does not dispute any of the foregoing testimony. (See generally Resp.) Instead, AFM asserts in response that LTK "misapprehends the nature and import of Mr. Dexter's proffered testimony." (Resp. at 17.) AFM asserts that it is "not offering Mr. Dexter's testimony to necessarily proof [sic] the truth of what is specifically contained in the FSA report," but rather "is offering Mr. Dexter's testimony to demonstrate that [the Washington State Department of Transportation ("WSDOT")] would not allow the Monorail back into revenue service until the FSA report was completed and accepted by WSDOT, that a recognized and accepted methodology for preparing the FSA was followed, that the FSA was prepared and submitted to the WSDOT for acceptance, and in fact it was accepted by WSDOT." (Id.) AFM asserts that "Mr. Dexter's testimony provides the proper foundation for the introduction of testimony with respect to how much it cost to complete all of the work called for by the FSA and in fact which was completed by SMS in order receive [sic] approval from the WSDOT to place the Monorail back in revenue service." (Id.) Thus, AFM now states that Mr. Dexter's testimony is being offered to show that the FSA report "was completed as required by WSDOT and accepted by WSDOT as satisfactory." (Id. at 17-18.) Unfortunately, as detailed above, this is not how AFM described Mr. Dexter's proffered expert testimony in its expert witness disclosure.
In its reply memorandum, LTK asserts that AFM should be barred from presenting these new "eleventh hour" opinions delineated for the first time in AFM's response to LTK's motion to exclude Mr. Dexter's expert testimony. (Dexter Reply (Dkt. # 184) at 4-5.) Federal Rule of Civil Procedure 26(a)((2)(D) requires parties to make their expert witness disclosures "at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). Here, the parties' deadline for disclosing expert testimony was November 6, 2013. (Sched. Ord. (Dkt. # 150) at 1.) Thus, there is no question that AFM's disclosure of additional areas of expert testimony in its response memorandum is late under Rule 26(a)(2)(D).
Rule 26(e) permits supplementation of an expert report "in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect . . . ." Fed. R. Civ. P. 26(e)(1)(A). The supplementation rule, however, is not intended to allow parties to add new opinions to an expert disclosure based on evidence that was available to them at the time the initial disclosure was due. The duty to supplement does not give license to surprise one's opponent with issues which should have been included in the expert witness disclosure. See Reinsdorf v. Sketchers U.S.A., 922 F.Supp.2d 866, 880 (C.D. Cal. 2013); see also Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998) ("The purpose of supplementary disclosures is just that—to supplement. Such disclosures are not intended to provide an extension of the expert designation and report production deadline.") (footnote omitted); Toomey v. Nextel Commc'ns, Inc., 2004 WL 5512967, *4 (N.D. Cal. Sept. 23, 2004) ("The supplementation requirement of Rule 26(e)(1) is not intended, however, to permit parties to add new opinions to an expert report based on evidence that was available to them at the time the initial expert report was due."); Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002) ("To construe supplementation to apply whenever a party wants to bolster or submit additional expert opinions would [wreak] havoc in docket control and amount to unlimited expert preparation"); Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998) ("Supplementation under the Rules means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure").
AFM never explains why it failed to include the topics described in its responsive memorandum to LTK's motion in its original expert designation. The court can discern no reason why these topics could not have been included in AFM's original designation. As such, the court cannot find that AFM's responsive memorandum constitutes a timely "supplementation" of its expert witness designation under Rule 26(e).
Federal Rule of Civil Procedure 37(c) authorizes the imposition of sanctions against a party who fails to identify a witness or to provide information as required under Federal Rule of Civil Procedure 26(a) or (e). Fed. R. Civ. P. 37(c). In general, the Rule provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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 harmless." Fed. R. Civ. P. 37(c)(1). In addition, Rule 37(c) provides that as an addition or substitute for this sanction, "the court, on motion and after giving an opportunity to be heard . . . (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)."
The only sanction that LTK has requested is the exclusion of Mr. Dexter's testimony regarding any of the new opinions set forth in AFM's response memorandum. (Dexter Reply at 4-5.) Because it is a harsh sanction, it need not be applied if AFM's failure to timely disclose was "substantially justified or harmless." Fed. R. Civ. P. 37(c)(1). Unfortunately, AFM offers no excuse for its failure to include the topics identified in its response memorandum for Mr. Dexter's expert testimony in its original expert designation. (See generally Resp.) Instead, AFM merely asserts that LTK "misapprehend[ed] the nature and import of Mr. Dexter's proffered testimony." (Resp. at 17.) The court, however, has reviewed AFM's expert designation and agrees with LTK that the topics AFM proffers in its response memorandum for Mr. Dexter's expert testimony were not previously identified in AFM's expert disclosure for Mr. Dexter. Nor is it obvious from the context of the designation that AFM was proffering Mr. Dexter's expert testimony concerning the FSA report as "germane" to the issue of damages, but not liability or causation. (See Resp. at 18.) Thus, there is no basis upon which the court could find that the untimeliness of AFM's modification of Mr. Dexter's expert witness designation was substantially justified.
Neither can the court conclude that AFM's tardy disclosure of the subject matter upon which AFM expected Mr. Dexter to provide expert testimony under Rules 702, 703 or 705 was harmless.
As discussed above, under Rule 37(c)(1), it is within the court's discretion to exclude Mr. Dexter's expert testimony on the late disclosed subject matter or, "[i]n addition to or instead of this sanction," to impose alternative sanctions. Fed. R. Civ. P. 37(c)(1). Exclusion is the "self-executing" or "automatic" sanction contemplated under Rule 37(c). See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (citing Fed. R. Civ. P. 37 advisory committee's note (1993)). Other circuit courts have ruled that the exclusion sanction is an extreme remedy "not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the [untimely proffered] evidence." See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 792 (3d Cir. 1994). The Ninth Circuit, however, is not one of them and has declined to adopt any such prerequisite. See, e.g., Quevedo v. Trans-Pacific Shipping, 143 F.3d 1255, 1258 (9th Cir. 1998), Wong, 410 F.3d at 1061-62. Indeed, the Ninth Circuit has expressly opined that the exclusion sanction, although concededly "onerous," may be appropriately imposed under Rule 37(c) in the absence of any willfulness, fault, or bad faith on the part of the dilatory party, even where its imposition may render it difficult or impossible for that party to prove his or her case. Yeti by Molly, 259 F.3d at 1106.
Here, the court finds exclusion of the Mr. Dexter as an expert witness with respect to the additional subject matters identified in AFM's response to LTK's motion to be the appropriate remedy. In so ruling, however, the court notes that some of the testimony that AFM describes in its response to LTK's motion may be based not on Mr. Dexter's expertise in any particular area, but simply on his perception of events as they unfolded with respect to the FSA report. In other words, apart from AFM's designation of Mr. Dexter as an expert witness, Mr. Dexter may simply have factual testimony to offer that is relevant to the parties' dispute. The court has not been asked to rule on the admissibility of Mr. Dexter's testimony as a fact witness in this matter and nothing in this order should be construed as doing so.
In sum, the court grants LTK's motion to exclude the expert testimony of Mr. Dexter on the subject matter identified in AFM's expert disclosure—namely the contents of the FSA report. Mr. Dexter acknowledged during the course of his deposition that he did not participate in actually drafting the report, did not perform any of the analysis in the report, lacks the technical expertise or experience to opine concerning the recommendations contained in the report, and to the extent the report contains his opinions, lacks a sufficiently reliable basis for admission of those opinions under Rule 702. In addition, the court declines to permit AFM to untimely disclose additional subject matters with respect to Mr. Dexter's expert testimony in its response to LTK's motion and excludes any expert testimony from Mr. Dexter on these topics as well. In so ruling, however, the court expressly does not rule on whether Mr. Dexter could testify as a fact witness with respect to portions of the subject matter described in AFM's responsive memorandum.
Based on the foregoing, the court GRANTS in part and DENIES in part LTK's motion with respect to Mr. Way (Dkt. # 174), and GRANTS LTK's motions with respect to Mr. Rongren, and Mr. Dexter (Dkt. ## 175, 176). The court notes, however, that its order today with respect to Mr. Rongren and Mr. Dexter is directed solely to their proposed testimonies as expert witnesses and is not to be construed as ruling on any relevant testimony that either of these individuals may have to offer simply as fact witnesses.
