This action stems from a trip and fall incident that occurred on July 19, 2019, while Plaintiff, Carolyn Simmons was walking and tripped along a dangerous and defective sidewalk located in front of Rite Aid in Ridgeland, South Carolina. The Defendant, Rite Aid of South Carolina, Inc., Walgreens, and Sitaras and Tzioros Properties, Inc., (hereafter referred to as “Defendant”), is a national drug store chain located in Ridgeland, State of South Carolina.
Defendant Sitaras and Tzioros Properties, Inc.’s (hereafter “Defendant”) filed a motion to exclude the testimony of Plaintiff’s expert Gerald Neal.
Construction Expert Witness
Gerald Neal is licensed general contractor with eighteen years of experience in project management and facilities engineering. Moreover, he has extensive experience constructing and renovating homes, offices, apartments, restaurants, and churches.
Discussion by the Court
While the case was still pending in state court, Plaintiff identified Neal as an expert witness and indicated, in response to Defendants’ interrogatories, that Neal was “compiling” documents and would forward these upon receipt.
After the case was removed to United States District Court, the Plaintiff’s expert report was due by March 26, 2024. According to Defendant’s motion, no expert report meeting Rule 26(a)(2)(B) requirements had been produced by Plaintiff under the Court’s scheduling order.
Also, Neal was deposed while the case was still pending in state court. Besides, he stated in his deposition that he lacked certain important information that was necessary to finalize his opinions. Specifically, Neal testified that he needed the date of the building’s certificate of occupancy because that would determine the specific building code that was applicable to this incident.
Subsequently, Defendant filed its motion to exclude more than two months after the deadline in the scheduling order for the production of expert reports. Defendant’s assertions that it has never been provided an expert report from Neal and that his deposition testimony was “incomplete and inconclusive” have gone unchallenged by Plaintiff since no response to the motion to exclude was filed.
Ultimately, the Court found that no good cause or substantial justification has been shown for the failure to timely produce an expert report and the failure to comply has not been shown to be harmless.
Held
To conclude, the Court granted Defendant’s motion to exclude the testimony of Gerald Neal as an expert witness at trial.
Key Takeaway:
To conclude, the Court found that no good cause or substantial justification had been shown for the failure to timely produce an expert report. Furthermore, the failure to comply has not been shown to be harmless.
In short, when considering a motion to exclude an expert witness for failure to produce a required expert report, the Court must address two applicable rules. First, Fed. R. Civ. P. 16(b)(4) provides that a scheduling order may be modified only “for good cause and with the judge’s consent.” Second, even where a timely expert report has not been produced, an expert will not be excluded so long as the failure to timely produce the report is “substantially justified or is harmless,” as per Fed. R. Civ. P. 37(c)(1).
Case Details:
| Case Caption: | Simmons V. Rite Aid Of South Carolina, Inc. Et Al |
| Docket Number: | 9:23cv2290 |
| Court: | United States District Court, South Carolina |
| Order Date: | July 03, 2024 |
Leave a Reply