Plaintiff, a long-time employee of Chevron, filed his First Amended Complaint on August 22, 2023 and alleged that Chevron’s Pascagoula Refinery had been marred by racism and sexism, that his contributions to the company exceeded his compensation, and that “discriminatory practices have prevented him from being promoted.”
The issue before the Court is whether the expert witness report for Plaintiff’s damages expert should be stricken. On July 19, 2024, Plaintiff designated Charles Baum as a damages expert and provided Defendant with a copy of Baum’s expert report.
Defendant argued that Baum’s report ran afoul of Fed. R. Civ. P. 26(a)(2)(B)(ii) as the report “failed to identify all the documents upon which Baum relied in forming his expert opinions.” Specifically, Defendant contended that the following documents relied upon by Plaintiff’s expert were not clearly identified in the expert report nor were they produced by Plaintiff: (i) Income tax statement for [Plaintiff] for 2023 (ii) Chevron employee savings investment plan (January 1, 2014) (iii) Chevron employment benefits for [Plaintiff] (various dates).
Economics Expert Witness
Charles L. Baum II is a professor of economics and finance at Middle Tennessee State University. Moreover, he has a Ph.D. in economics from the University of North Carolina at Chapel Hill. In addition, he holds both a B.A. in political science and a B.A. in economics from Wake Forest University.
Discussion by the Court
Income Tax Statement for [Plaintiff] for 2023
Regarding the “Income Tax Statement for [Plaintiff] for 2023,” Defendant claimed that Plaintiff has not produced any tax-related records for 2023.
The Court held that Defendant should not be obligated to engage in guesswork as to which document may (or may not) be the “Income Tax Statement for [Plaintiff] for 2023” relied upon in Baum’s expert report. Nor should the Court. Accordingly, the Court found that the document identified as “Income Tax Statement for [Plaintiff] for 2023” was not properly disclosed in Baum’s expert report.
Chevron employee savings investment plan (January 1, 2014)” and “Chevron employment benefits for [Plaintiff] (various dates)
As to the other documents, Defendant asserted that Plaintiff has not produced any employee savings investment plan dated January 1, 2024, nor any documents related to “employment benefits” for any date.
It is Plaintiff’s obligation under Fed. R. Civ. P. 26(a)(2)(B)(ii) to disclose “the facts or data considered by” Baum in forming his opinion. Plaintiff has not convinced the Court that he provided Defendant with the documents titled “Income tax statement for [Plaintiff] for 2023,” “Chevron employee savings investment plan (January 1, 2014),” or “Chevron employment benefits for [Plaintiff] (various dates)” as relied upon in Baum’s expert report.
Authority to Strike
Under Rule 37(c)(1), a party who fails to provide information required by Rule 26(a) “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”
Turning to the first factor, and as noted above, Plaintiff does not explicitly dispute whether he provided the documents at issue that were relied upon in Baum’s expert report. Rather, he contends that Defendant either possessed the documents at issue or that it was obligated to produce them. Plaintiff ignores the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demands that he provide the documents relied upon in Baum’s written report. This factor weighs in favor of exclusion.
As for the second factor, Baum’s testimony is certainly important. Baum is the only expert designated by Plaintiff to support any evaluation of damages in this matter. This factor weighs against exclusion.
As for the third factor, Defendant contends that, without an adequate report, it has been prejudiced. Specifically, Defendant argues that it has been prevented from “adequate[ly] prepar[ing] for its expert designation, which is due August 20, 2024.” This factor slightly favors exclusion, but, as discussed below, any such prejudice can be cured. Finally, the Court may cure any prejudice to Defendant by allowing Plaintiff to supplement Baum’s report and by granting an extension of Defendant’s expert designation deadline.
On balance, the Court found that striking Baum’s report is too harsh a remedy under the circumstances.
Held
In conclusion, the Court granted in part and denied in part the Defendant Chevron U.S.A., Inc.’s motion to strike the report of Plaintiff’s expert economist, Charles Baum.
Key Takeaway:
- First, the mere fact that the information relied upon in the report is public information does not absolve Plaintiff from disclosing it.
- Second, Plaintiff ignored the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demanded that he provide the documents relied upon in Baum’s written report.
| Case Caption: | Harness V. Chevron U.S.A., Inc. |
| Docket Number: | 1:23cv210 |
| Court: | United States District Court, Mississippi Southern |
| Order Date: | August 19, 2024 |
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