In 2015, Defendant/Counter-Plaintiff C70 Builders, Inc. contracted with Plaintiff Mid-South Outlet Shops, LLC c/o Tanger Management, LLC for the construction of the Tanger Outlets Southaven, an open-air mall in Southaven, Mississippi. The Mall opened in November 2015. According to C70, the first design modifications were subsequently installed at several buildings on the Project by C70 pursuant change orders under the Original Contract, and at other buildings by a different contractor retained separately by Tanger (these first modifications were named the “VF Fix”). Beginning in 2019, other agencies and consultants were retained by both Tanger and C70 to help identify the source and propose remedial action for ongoing water intrusion issues. These remediation efforts also included the execution of a second contract in February 2020 between C70 and Tanger for C70 to install additional modified waterproofing designs (the “Pier Replacement Contract”).
Façade Due Diligence Report
In August 2021, Tanger retained Jeffrey Mason, and his company, WGI, Inc. (“WGI”), to review all pertinent documents related to the construction for the project including subsequent reviews, repairs and drawings created after the retail buildings were completed. This review was to be done to provide ownership with WGI’s evaluation of these documents and to direct ownership on next steps based on the findings. In connection with this review, WGI was to prepare a written report summarizing its findings of the construction documents, initial construction of the buildings, subsequent reviews, tests, and previous repairs with photographs of representative conditions, an estimate of probable construction costs, and recommendation of how to proceed concerning warranties and deadlines for litigation. WGI generated a “Façade Due Diligence Report” bearing Mason’s name on November 16, 2021 (the “First WGI Report).
Shortly thereafter, Tanger advanced claims for breach of contract and negligence, alleging that there have been “numerous incidents of defective construction, some of which have caused substantial water infiltration” throughout the Site. According to C70, these allegations are taken almost verbatim from the executive summary of the First WGI Report.
C70 filed a motion to strike reports and testimony of Jeffrey Mason, the designated expert of Tanger for the reason that his disclosures as an expert witness are insufficient under Rule 26 of the Federal Rules of Civil Procedure and on the basis of “… the prejudicial impact of allowing him to testify without C70 having had an opportunity to depose him prior to the September 13, 2024 deadline for the filing of Daubert and dispositive motions.”
Architecture Expert Witness
Jeffrey Mason has extensive experience managing a wide range of architectural projects and the production of construction documentation. His areas of expertise include exterior facade restoration and rehabilitation, several types of construction projects including, but not limited to the following: large mixed-use commercial developments, adaptive re-use projects, historic restoration projects, retail developments, and multi-family developments.
Discussion by the Court
Discovery in this long pending, multi-party construction case has no doubt resulted in extensive and complicated reports of experts.
The Court held that the rule is quite clear, as Local Rule 26(a)(3) states: Failure to Disclose. If a party fails to make a disclosure required by [Local Rule 26], any other party must move to compel disclosure and for appropriate sanctions under Fed. R. Civ. P. 37(a) …. Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.
Moreover, not only is the rule plain, but the reason for its having been adopted in the Northern and Southern District Courts of Mississippi is due to its inherent fairness. The Court found C70’s counsel’s failure to have addressed the rule in its lengthy recitation of both rule Fed. R. Civ. P. 26 and L.U. Civ. R. 26(a)(3) in its 27-page memorandum or by way of reply brief concerning.
Whether C70 has waived its challenges to the sufficiency of Tanger’s multiple expert disclosures of Mason under Fed. R. Civ. P. 26 due to its failure to timely raise them
C70 correctly pointed out that in evaluating whether a violation of Rule 26 is harmless, the Fifth Circuit has held that district courts are to consider: (1) the importance of the evidence; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility for curing such prejudice by granting a continuance; and (4) the explanation, if any, for the party’s failure to comply with the disclosure requirements. C70 insisted that these factors mandate an exclusion of Mason as an expert witness, retained or otherwise. Tanger argued that C70 never made any suggestion that Tanger’s multiple expert disclosures were insufficient under either Fed. R. Civ. P. 26(a) or L.U. Civ. R. 26 until well after the discovery deadline and just two days before the dispositive and Daubert motions deadline. As such, Tanger argued that its challenges to the adequacy of the disclosures have been waived.
The Court found that C70 has not demonstrated any actual prejudice from any claimed inadequacy of the disclosure of Mason since a denial of its motion to strike based thereon due to its waiver does not make those expert disclosures any more comprehensive or capable of withstanding a Daubert challenge than they actually are. In other words, unless the district judge finds otherwise, Mason, as an expert, will be limited at trial to offering those facts and opinions that have actually been disclosed and which withstand any Daubert challenge.
Held
The Court denied Defendant/Counter-Plaintiff C70 Builders, Inc.’s (“C70”) motion to strike reports and testimony of Jeffrey Mason, for insufficient disclosure.
Key Takeaways:
- When C70 contented that Tanger’s multiple expert disclosures were insufficient under either Fed. R. Civ. P. 26(a) or L.U. Civ. R. 26, the Court noted C70’s failure to timely raise challenges to the sufficiency of Tanger’s multiple expert disclosures.
- The Court found that C70 has not demonstrated any actual prejudice from any claimed inadequacy of the disclosure of Mason since a denial of its motion to strike based thereon due to its waiver does not make those expert disclosures any more comprehensive or capable of withstanding a Daubert challenge than they actually are.
Case Details:
| Case Caption: | Mid-South Outlet Shops, Llc V. C70 Builders, Inc. |
| Docket Number: | 3:21cv256 |
| Court: | United States District Court, Mississippi Northern |
| Order Date: | November 4, 2024 |
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