JOHN S. KAULL, Magistrate Judge.
This matter is before the Court pursuant to Defendants' "Motion to Strike Plaintiff's Expert Witnesses," filed on July 10, 2014. (Docket No. 38.) Plaintiff filed its response on July 18, 2014. (Docket No. 47.) Defendants filed a reply on July 25, 2014. (Docket No. 53.) This matter was referred to the undersigned by United States District Judge Frederick P. Stamp, Jr. on July 17, 2014. (Docket No. 43.) On July 28, 2014, counsel for the parties appeared via telephone for a hearing on the instant motion.
On October 21, 2013, Plaintiff filed a Complaint against Defendants pursuant to the Miller Act, 40 U.S.C. § 3131 et seq. The underlying dispute arises out of an ongoing construction project for the United States, referred to as the Biometrics Technology Center ("the Project"), in Clarksburg, West Virginia. Turner Construction Company ("Turner") serves as the general contractor for the Project, and the Defendants issued a payment bond on behalf of Turner. Turner entered into a subcontract with Bell Constructors, LLC ("Bell") to perform certain mechanical work for the Project. Bell, in turn, entered into a subcontract with Plaintiff to perform a portion of the mechanical work. In the Complaint, Plaintiff asserts that it is entitled to damages for alleged delays and labor inefficiencies it has allegedly incurred in performing work at the Project. (Docket No. 1.) Defendants filed an Answer to the complaint on November 25, 2014. (Docket No. 14.)
On January 29, 2014, Judge Stamp issued a Scheduling Order, which provides, in relevant part, the following deadlines for disclosures regarding experts:
(Docket No. 25 at 3.) The Scheduling Order also provides that discovery is to be completed by July 31, 2014, that a final pretrial conference will occur on October 27, 2014, and that a bench trial will be held on November 12, 2014. (
On April 16, 2014, Defendants filed a "Motion for Partial Summary Judgment and to Stay All Proceedings" (Docket No. 28), which is pending before Judge Stamp. On April 21, 2014, Plaintiff issued subpoenas duces tecum to Bell and Turner, demanding production by May 23, 2014. (Docket Nos. 30 and 31.) On May 2, 2014, the parties jointly consented to extend the time for Plaintiff to respond to Defendants' motion for partial summary judgment and to stay to May 21, 2014. (Docket No. 31 at 1.) The parties also consented to extend the time within which Bell and Turner had to respond to the subpoena duces tecum to June 23, 2014. (
On June 26, 2014, Plaintiff served its initial disclosures on Defendants. (Docket No. 36.) On July 18, 2014, Plaintiff filed a motion to modify the Scheduling Order for this case, which remains pending before Judge Stamp. (Docket No. 48.) On July 23, 2014, Judge Stamp sent a letter to all counsel, stating that "Defendants' motion for partial summary judgement (ECF No. 28) is granted but a ruling on their motion to stay all proceedings is deferred pending further consideration and, possibly, the receipt of additional information." (Docket No. 51 at 2.) Judge Stamp also noted that he would be issuing a detailed written memorandum opinion and order as soon as possible. (
In its motion, Defendants assert that the Court "should strike Kogok's expert witness designation and preclude it from calling expert witnesses." (Docket No. 38 at 1.) Specifically, Defendants argue that:
(Docket No. 38 at 4-7.)
In its response, Plaintiff argues:
(Docket No. 47 at 3-12.)
In its reply, Defendants argue:
(Docket No. 53 at 4-8.)
Fed. R. Civ. P. 26(a)(2)(B) provides:
Fed. R. Civ. P. 26(e)(1) provides:
A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response:
Furthermore, Fed. R. Civ. P. 37(c)(1) provides:
The Fourth Circuit has stated that "[t]he language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclosure:
(1) when the failure to disclose is `substantial[ly] justifi[ed],' and (2) when the nondisclosure is `harmless.'"
As to the surprise to Defendants, the undersigned finds that there is no substantial surprise to Defendants by Plaintiff's late expert disclosure. From the parties' representations during the hearing, the sole surprise appears to be that Plaintiff's Complaint was specific in the amount of damages being sought, and that Defendants expected that an expert had already analyzed the case and expressed an opinion as to those damages and their cases. Plaintiff adequately explained that the amount claimed in the Complaint was based on its analysis under the "total cost" method. Plaintiff sought information from Turner and Bell to provide to its expert for use in preparing a more refined claim for both amount and cause and effect using one of the other methods, such as the "measured mile" approach, typically used in cases involving construction contract claims. Counsel for the parties indicated that there is no statutory or common law requirement that a party have an expert certify in a written report that there is a legal and factual basis for a claim before such claim can be made or a Complaint filed.
As to the ability of Defendants to cure such surprise, the undersigned notes that if the instant motion is denied and Plaintiff is permitted to file a late report based upon the information it already has and the current Scheduling Order remains in place, Plaintiff's expert report would (1) likely be incomplete and subject to attack by Defendants based upon its incompleteness and (2) Defendants would not have time to conduct depositions of Plaintiff's experts or prepare and file their own rebuttal expert reports. Likewise, if the Court were to deny the instant motion, Plaintiff were permitted to file a late expert report based upon the information to be received pursuant to the subpoenas issued to Turner and Bell, and the current Scheduling Order remained in place, Plaintiff's report would (1) likely be complete and (2) Defendants would not have time to conduct depositions of the expert or prepare and file their own rebuttal expert reports. Finally, if the Court were to deny the instant motion and Plaintiff were permitted to file a late expert report based upon the information to be received from Turner and Bell after Judge Stamp has ruled on Defendants' motion for partial summary judgment, Plaintiff's report would (1) likely be complete and (2) Defendants would still not have time to conduct depositions of the expert or prepare and file their own rebuttal expert reports.
As to the extent which allowing the evidence would disrupt the trial, the Court notes that a final pretrial conference has been scheduled for October 12, 2014, and a bench trial has been scheduled for November 12, 2014. The undersigned finds that those dates would almost certainly be affected by a denial of the instant motion. Other than a delay in resolution, Defendants were unable to identify any other prejudice, such as a loss of evidence or loss of witnesses through faulty memory, death, or disability, caused by Plaintiff's late expert disclosure. The undersigned notes that this case largely involves electronic and hard-copy records and that such records are available because the Project is ongoing.
As to the importance of the evidence, the undersigned finds that without receiving the information being sought by subpoenas duces tecum from non-parties Bell and Turner, Plaintiff's case, particularly its expert disclosures, will be incomplete and subject to attack for incompleteness. Accordingly, the evidence is essential to Plaintiff's prosecution of its claims.
Finally, as to the nondisclosing party's explanation for its failure to disclose, Plaintiff's counsel acknowledged that he and members of his firm's staff made a mistake in calendaring the dates set forth in the Court's Scheduling Order. At the hearing, Plaintiff's counsel represented that the firm had taken steps to ensure that such a mistake would not occur in the future. Accordingly, the undersigned finds that Plaintiff's mistake was inadvertent. Even if the scheduling mistake had not occurred, the absence of information from non-parties Turner and Bell would have resulted in Plaintiff's expert disclosures being incomplete. Plaintiff's counsel represented that he began seeking this information in February 2014. Defendants filed their motion for partial summary judgment on April 16, 2014. When Plaintiff did not receive the information, Plaintiff served subpoenas duces tecum on Turner and Bell on April 21, 2014. By stipulation dated May 2, 2014, counsel for the parties agreed to delay responses to the subpoenas until June 23, 2014, believing that they would have the benefit of a decision on Defendants' motion for partial summary judgment which would guide them as to the future scope of this case. The undersigned finds that there is no evidence of any other basis for Plaintiff's delay in filing its expert disclosure under Rule 26(a)(2)(B).
Based upon these conclusions, the undersigned finds that the pending motion for partial summary judgment in combination with the actions of the parties in stipulating to delays of production of documents by non-parties Turner and Bell provides justifiable excuse for Plaintiff's late expert disclosures because (1) a decision on that motion may significantly narrow the scope of discovery sought from non-parties for expert review for Plaintiff to prove its claims and (2) the parties delayed the productions by Bell and Turner to see what the scope of the case was after the Court's ruling on the motion for partial summary judgment. Accordingly, the undersigned finds that the only way to fairly, effectively and efficiently cure the effects of Plaintiff's late expert disclosure is to (1) deny the instant motion.
For the foregoing reasons, Defendants' "Motion to Strike Plaintiff's Expert Witnesses" (Docket No. 38) is
It is so
The Clerk of the Court is directed to provide copies of this Order/Opinion to counsel of record and to remove Docket No. 38 from the list of motions actively pending before this Court.