Expert Witness Profiler

Tag: Deadline

  • Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Plaintiff Brooke Mann suffered serious injuries at a music festival in September 2021 when a shuttle tram on which she was riding tipped over on a sloped roadway.

    The Lost Lands Music Festival takes place each September at Legend Valley, a large outdoor venue near Buckeye Lake and Thornville, Ohio. The multi-day festival is dinosaur-themed and features electronic dance music. About 30,000 people attended the festival in 2021.

    Defendant Apex Event Management LLC is a Delaware company with its principle place of business in California. It promoted the festival in 2021, as it had previously. To present the festival, Apex contracted with other entities and individuals to acquire the necessary rights, to book talent, to market and sell tickets, and to obtain the goods and services needed for putting on the festival.

    Apex acquired the right to use Legend Valley through Defendant Trickle Productions LLC, an Ohio business.

    Plaintiff sued Apex Event Management, LLC and Trickle Productions, LLC whom she alleges are responsible for the accident under Ohio’s legal standards governing negligence.

    Plaintiff’s expert, James Crawford, has issued three separate reports. Apex and Trickle moved to strike the third report, dated December 12, 2024.

    Accident Reconstruction Expert Witness

    James B. Crawford is a forensic engineer and accident reconstructionist. He provides vehicular accident reconstruction services and has reconstructed over 750 accidents. He has provided expert testimony in Federal, State, and Municipal Courts.

    Get the full story on challenges to James Crawford’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendants contended that Plaintiff improperly produced the third report after the Court’s August 26, 2024 deadline for the production of primary expert reports and even after the October 26, 2024 deadline for fact discovery.

    Whether the Third Report Qualifies as a Supplemental Disclosure

    Crawford’s third report is presented as a complete, stand-alone report. Even so, Plaintiff characterizes it as a supplemental disclosure under Rule 26(e)(2). She argued that disclosure of the third report was required because of new information she learned after Crawford prepared his second report.

    Zemba’s corporate representative, Bryan Paisley’s deposition did reveal a new fact – that in the course of creating the reconfigured section, Zemba placed dirt on top of the section of the road where the accident occurred. Had Crawford’s third report incorporated additional material to address that possibly new fact, then the Court would be inclined to agree with Plaintiff’s characterization of the third report as a supplemental disclosure. However, the third report did not even acknowledge, let alone discuss, the fact that dirt had been placed on top of the section of road where the accident occurred.

    The new “fact” which the third report instead addresses does not relate to the physical changes to the road but rather to Zemba’s motive in creating the new section of road. Paisley testified that Zemba built the new section – straighter and not as steep as the old section – because it would be easier for its dump trucks to use.

    The third report treated Paisley’s testimony as an admission that the old road was “unsafe.” Not only has Crawford mischaracterized Paisley’s testimony – insofar as Paisley testified that the new section was safer, not that the old section was unsafe – but the third report did not include any reconsideration of the conditions of the accident-scene road in light of Paisley’s testimony about dirt being placed on top of it during the 2022 reconfiguration. The Court thus found that the third report is not responsive to “information that was not available at the time” of the second report.

    Whether the Untimely Disclosure is Substantially Justified or Harmless

    The third report was indeed a surprise. Following the grant of prior extensions, the Court set a strict deadline of August 26, 2024 for the production of primary expert reports. It also set a dispositive motion deadline of December 20, 2024, and advised the parties that no further extensions would be granted. Plaintiff waited until after these deadlines to disclose the third report, and she did so only once Defendants’ motions for summary judgment were filed.

    The Court noted that the additional scope of Crawford’s third report (as compared to the second report) went beyond addressing Paisley’s purported admission that the accident-scene road was unsafe. Crawford added content discussing the Federal Highway Administration’s standards for the design and maintenance of gravel roads, the classification of the tram as a “commercial vehicle,” and the resulting implications under federal and state law.

    Because all of this additional material was first disclosed in the third report, Defendants did not have notice of Crawford’s new opinions until after the close of expert and fact discovery and after Defendants had moved for summary judgment.

    Held

    The Court granted the Defendants’ motion to strike the third report of Plaintiff’s expert James Crawford.

    Key Takeaway:

    While Defendants acknowledged that the new matters addressed in the third report have importance, Plaintiff has not provided a satisfactory explanation for the late disclosure of the third report. The reconfiguration of the accident road was known to Plaintiff several months in advance of the deadline for primary expert reports. To the extent Paisley’s deposition revealed a new fact (the placing of dirt on the old section of road) the third report does not address that fact.

    Case Details:

    Case Caption: Mann V. Lnkbox Group, Inc.
    Docket Number: 2:22cv2553
    Court Name: United States District Court, Ohio Southern
    Order Date: February 12, 2026
  • Orthopedic Surgery Expert’s Testimony on Physical Injuries Excluded

    Orthopedic Surgery Expert’s Testimony on Physical Injuries Excluded

    The instant matter arises out of a power catamaran scenic and snorkel tour that Plaintiffs Candice Myhre and Norman Davidson, IV boarded on May 14, 2021 from Kikiaola Small Boat Harbor.

    As the vessel began to exit the harbor, it encountered large waves, and Myhre stated that she flew out of her seat, hit her face on the vessel’s railings, and slammed down onto metal seats. As a result, she was transported to Kauai Medical Clinic for medical care and received treatment for physical injuries to her face, knee, and lower leg.

    On June 24, 2025, Plaintiffs disclosed Dr. Derek S. Johnson, D.O. as “Plaintiffs’ medical expert who will testify, including but not limited, to Plaintiff Candice Myhre’s injuries and damages issues.”

    Defendants contended that Johnson’s disclosure was untimely because Plaintiffs failed to disclose him properly as a medical expert.

    Orthopedic Surgery Expert Witness

    Dr. Derek S. Johnson, D.O. is a graduate of the Doctor of Osteopathic Medicine Program at Midwestern University-Glendale Medical School and completed his Orthopaedic Surgery residency at Pinnacle Health System in Harrisburg, PA. He currently serves as the Department Chair of Orthopedic Surgery at Wilcox Medical Center.

    Get the full story on challenges to Derek Johnson’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendants argued that they would be plainly prejudiced should Johnson be permitted to testify as a retained expert or as a treating physician at trial because the trial is scheduled to commence in less than sixty days and the discovery deadline has expired.

    Plaintiffs, however, contended that Johnson was disclosed on June 24, 2025 as a non-treating medical expert, and his opinions were disclosed on October 9, 2025. There was no failure to identify Johnson as a retained non-treating physician, they argued, because they stated in the initial disclosure that “‘Plaintiffs reserve the right to supplement and/or amend [their] disclosure as necessary and as additional information becomes available through discovery and other means.’” Plaintiffs argued that if there was a failure to disclose, that
    failure was merely harmless under Rule 37(c)(1).

    The key question is: does Rule 26(a)(2)(B)’s written report requirement apply to Johnson’s disclosure as an expert witness? Johnson is not identified as a treating physician; the opinions expressed do not indicate that they were formed during Plaintiff’s treatment; and Plaintiffs state that he was not a treating physician for Myhre. Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were required to disclose Johnson as an expert witness and provide an accompanying written report by the expert witness disclosure deadline of June 30, 2025.

    The expert report was not provided by that deadline and, to the extent that Plaintiffs contended that their submission of his report on October 9, 2025 was a supplemental disclosure, this contention fell short of the mark because of Rule 26(a)(2)(B)’s directive that the written report must accompany the expert witness disclosure.

    Analysis

    The Court concluded that the failure to disclose was not harmless and that lesser sanctions are not reasonably available.

    Plaintiffs have not carried their burden of proving harmlessness. Trial is scheduled to be held in two months and discovery has been completed. Johnson’s opinion report is not dated but the request for his opinions is dated February 21, 2025, which is seven months before it was disclosed to Defendants and four months before the expert witness disclosure deadline.

    A lesser sanction could be to require Plaintiffs to pay the costs and attorney’s fees to allow Defendants to take Johnson’s deposition. However, taking Johnson’s deposition and possibly retaining a defense medical expert with sufficient time to allow that expert to review medical records and Johnson’s testimony and having the defense expert prepare a report and have his or her deposition taken takes time; most likely four to six months, which is much more time than the two months before this matter is scheduled for trial.

    While Johnson’s testimony does bear upon Myhre’s claims of physical injuries (more specifically, the cause of her sepsis), there is no indication that her treating physicians are unable to testify regarding the nature and extent of her injuries for which she was treated and that they observed.

    Since Johnson’s opinion testimony has no bearing on liability issues, the Court cannot conclude that excluding Johnson will deal a fatal blow to Plaintiffs’ claims. The Court also cannot conclude that Plaintiffs had an excuse for the late disclosure, such as needing additional time for the expert disclosure, because they did not seek an extension of the deadline from the magistrate judge nor explain the reason for their failure to comply with the Rule 16 deadline.

    Held

    The Court granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness.

    Key Takeaway

    It should be noted that no explanation is offered as to why it took from February to October to obtain and disclose Johnson’s written opinion report. There is no indication that his report could not have been disclosed by the June 30, 2025 expert disclosure deadline.

    The Court concluded that the non-compliance was not harmless; that there are no lesser sanctions available given the short time before trial; and that the exclusion sanction is warranted and will not result in a fatal blow to Plaintiffs’ claim.

    Case Details:

    Case Caption: Myhre V. Marina LLC
    Docket Number: 1:24cv217
    Court Name: United States District Court, Hawaii
    Order Date: January 14, 2026
  • Engineering Expert’s Theory of Damages Excluded

    Engineering Expert’s Theory of Damages Excluded

    Plaintiff Leflore County Board of Supervisors filed suit against Meritor over a state-approved waste disposal that occurred almost two decades ago.

    In 2006, Meritor’s predecessor, ArvinMeritor, sent some waste to Plaintiff’s landfill (the “Landfill”) as part of a state-approved cleanup of the Moose Lodge Road Disposal Area (“MLRDA”). And now, almost two decades later,
    Plaintiff claimed that the MLDRA waste it received as part of that state-approved cleanup was wrongfully characterized as non-hazardous.

    Plaintiff held Meritor responsible for all costs necessitated by the waste disposal at the landfill.

    Defendant Meritor, Inc. filed a motion to strike the second supplemental report of Plaintiff’s expert D. Scott Simonton.

    Engineering Expert Witness

    David Scott Simonton is a Registered Professional Engineer with over thirty (30) years of professional experience in State environmental and public health protection regulatory agencies, private consulting and academia.

    Want to know more about the challenges David Scott Simonton has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Plaintiff initially submitted Simonton’s expert report on November 25, 2024, which was the deadline for the Plaintiff’s expert designation imposed by the original Case Management Order. Notably, this initial report consisted of a cost estimate of $170,382.50 for “waste characterization,” based on the Plaintiff’s belief that Meritor had disposed of hazardous wastes in a certain limited area of the Leflore County municipal landfill.

    Subsequently, on January 29, 2025, after Simonton’s initial expert report was produced, the parties deposed Leflore County’s landfill operator, Waste Connections, whose representative testified that it had no way to determine where the allegedly hazardous waste had been disposed of within the landfill. This testimony, in turn, formed the alleged basis for the opinion offered in Simonton’s second supplemental report.

    Following the Waste Connections deposition, Simonton submitted his first supplemental report on April 15, 2025, and later, his rebuttal report on June 5, 2025. However, neither report included a new or revised cost estimate that accounted for Waste Connections’ position that the location of the contaminated soils could not be determined. Thereafter, Meritor deposed Simonton on June 30, 2025, and the discovery period closed on August 8, 2025.

    Finally, on August 29, 2025, the Plaintiff submitted Simonton’s second supplemental report—the subject of the present motion—which included a “Remedial Investigation cost estimate” totaling $3,163,902.50. This report sought to address the alleged uncertainty regarding the location of the contaminated soil within the Leflore County municipal landfill and justified the need for an expanded investigation involving increased sampling.

    Analysis

    The Plaintiff’s expert designation deadline was November 25, 2024, and any supplement to Simonton’s expert report was due no later than the discovery deadline of August 08, 2025.

    I. Whether the second supplemental report contains new opinions

    The Plaintiff argued that the estimate in the second supplemental report “was merely a recalculation of [Simonton’s] mathematical formulas based on new information, i.e., Meritor’s lack of knowledge of where it caused the hazardous wastes to be dumped.” However, Meritor contended that the supplemental report introduced “an entirely new theory of damages” that had not been previously disclosed and lacked good cause. The Court agreed.

    Simonton’s second supplemental report presented a Remedial Investigation (“RI”) cost estimate based on entirely new criteria and considerations—all known to the Plaintiff as early as January 2025 but not included in the initial or previously supplemented reports.

    Regardless of whether the earlier reports contained opinions about the need for an RI (a point the parties dispute), the second supplemental report offered an entirely new cost estimate based on Waste Connections’ opinion that the location of the contaminated soils at the municipal landfill could not be determined. This stood in contrast to the prior assumption that Meritor had disposed of hazardous wastes only in a certain limited area. As a result, the Plaintiff’s attempt to introduce new opinions through an untimely supplement was deemed improper.

    II. Whether the new opinions are substantially justified or harmless

    The Plaintiff offered no explanation for the failure to supplement Simonton’s opinion at any point during the seven-month period after Waste Connections’ deposition and before the expiration of the discovery deadline. This delay certainly mitigates against the alleged importance of the opinion. Despite the Plaintiff’s arguments to the contrary, the prejudice to Meritor is clear: the second supplemental opinion is neither a minor amendment nor a recalculation. The discovery period is closed, and the motions deadline has passed. Meritor has had no opportunity to seek discovery regarding this opinion or have its own expert review and respond in their report. Finally, to continue the trial setting and reopen discovery to mitigate the prejudice to Meritor would require the Court to ignore the Plaintiff’s failure to establish the first three factors.

    The Court concluded the untimely disclosure of Simonton’s second supplemental report was not substantially justified or harmless.

    Held

    The Court granted Meritor’s motion to strike the second supplemental report of Plaintiff’s expert D. Scott Simonton.

    Key Takeaway:

    The second supplemental report of Simonton contained opinions markedly different from those set forth in the original, first supplemental, and rebuttal reports and was made beyond the permissible deadline for supplementing expert disclosures under Rule 26.

    Case Details:

    Case Caption: Leflore County Board Of Supervisors V. Meritor, Inc. Et Al
    Docket Number: 4:24cv33
    Court Name: United States District Court, Mississippi Northern
    Order Date: October 29, 2025
  • Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Plaintiff, Pearl R. Kline was driving her vehicle eastbound on Interstate 70, near the Clear Springs exit in Washington County, Maryland. At the same time, a vehicle owned by Defendant Road Range Express and operated by Defendant Sukhjinder Singh was traveling directly behind Plaintiff’s vehicle. When Plaintiff stopped for traffic, Singh’s vehicle struck the rear of her vehicle. This incident led Plaintiff to file a negligence action against Road Range Express and Singh.

    On June 19, 2025, Defendants filed a motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik. In their motion, Defendants argued that Plaintiff’s Rule 26(a)(2) expert disclosure should be stricken because it is (1) untimely and (2) insufficient, in violation of Rule 26(a)(2) of the Federal Rules of Civil Procedure. 

    Neurosurgery Expert Witness

    Dr. Ira M. Garonzik is the founder and president of the Baltimore Neurosurgery and Spine Center which began in 2005. The Baltimore Neurosurgery and Spine Center specializes in the comprehensive treatment of a wide variety of intracranial and spinal disorders. Garonzik is widely published, having authored more than fifty peer reviewed articles, book chapters and abstracts.

    He completed his neurosurgical residency at the Johns Hopkins Hospital after earning his medical degree from the Emory University School of Medicine Summa Cum Laude and his undergraduate degree with highest honors from Johns Hopkins University. During his training, Garonzik completed specialized fellowships in complex spinal surgery and functional neurosurgery.

    Get the full story on challenges to Ira Garonzik’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendants argued that they would be severely prejudiced if the Court were to permit the untimely disclosure of Plaintiff’s expert because discovery had closed and the deadlines for their own disclosures had elapsed, leaving them with no opportunity to rebut or respond to Garonzik’s opinions.

    Plaintiff’s disclosure included the expert’s curriculum vitae and fee schedule, but omitted the expert’s report and did not otherwise summarize the expert’s opinions. There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient.

    There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Moreover, as Plaintiff’s own opposition admitted, the untimely disclosure was not substantially justified. Consequently, the real inquiry is whether the error was harmless.

    In determining whether a party’s failure to disclose was substantially justified or harmless so as to exclude a witness pursuant to Rule 37(c)(1), this Court has broad discretion and is guided by consideration of five factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.” 

    Analysis

    The first factor, surprise, weighed in Defendants’ favor, as the disclosure came more than two months after the disclosure deadline and without advance notice.

    The second factor—the ability to cure—cuts both ways. Because the discovery period has closed, Defendants’ ability to identify a rebuttal expert is limited. However, reopening discovery for the narrow purpose of allowing Defendants to serve their own expert disclosures provides an adequate cure. Indeed, there are several cases in this District that have permitted limited extensions of discovery to mitigate the prejudice from untimely expert disclosures. 

    The third factor, disruption of trial, did not weigh heavily against Plaintiff, as no trial date has been set, and a modest extension of expert discovery will not substantially disrupt proceedings. The fourth factor, the importance of the evidence, strongly favored Plaintiff, as Garonzik is Plaintiff’s sole expert on damages, which is the only remaining issue in this case. Finally, the fifth factor, the explanation for the delay, weighed against Plaintiff, as no justification has been provided for failing to comply with the Scheduling Order.

    Given the broad discretion afforded to district courts in weighing these factors and fashioning appropriate sanctions, the Court will treat Plaintiff’s disclosure of Garonzik as an untimely Rule 26(a)(2) disclosure that can be rendered harmless by modifying deadlines in the Scheduling Order. 

    Held

    The Court denied the Defendants’ motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik.

    Key Takeaway:

    On balance, although Plaintiff’s disclosure was untimely, insufficient, and unjustified, precluding Plaintiff’s expert from testifying altogether in this damages-only case would be an extreme result. 

    The Court can adequately minimize the prejudice to Defendants through a limited reopening of expert discovery. The Court will re-open discovery for a 45-day period for the sole purpose of allowing Defendants to conduct discovery related to Garonzik’s report (including a deposition of Garonzik) and to designate rebuttal witnesses.

    Case Details:

    Case Caption: Kline V. Singh Et Al
    Docket Number: 1:25cv63
    Court Name: United States District Court, Maryland
    Order Date: August 28, 2025
  • Rule 26 Violation is Harmless with Regard to the Engineering Expert’s Repair Estimates

    Rule 26 Violation is Harmless with Regard to the Engineering Expert’s Repair Estimates

    In this insurance breach of contract case, Plaintiff  LJP Building, LLC designated Alfredo Brizuela as its damages expert in March 2024. That same month, Brizuela prepared an estimate to restore the property to its pre-loss condition. The estimate was based on replacement cost value (RCV) and totaled $655,054.64. Westchester deposed Brizuela in February 2025.

    Subsequent to Brizuela’s deposition, it was noted that Brizuela omitted applicable depreciation as to the $655,054.64 RCV of the estimate. As a result, on April 1, 2025, Brizuela supplemented his estimate solely to apply depreciation to the $655,054.64 RCV. There was no adjustment to any of the values, simply the application of depreciation to the previously estimated amount of $655,054.64 to derive an actual cash value (ACV) of $636,447.67.

    Defendant contended that Brizuela’s application of depreciation to his previously produced estimate is an “untimely disclosure” and “presents entirely new facts, evidence and substantially revised expert opinions that were never disclosed.”

    Engineering Expert Witness

    Al Brizuela is a Florida licensed professional engineer, general contractor and registered industrial hygienist. He graduated from the University of Miami in 1978 with a Bachelor of Science degree in architectural engineering. Shortly after graduation, he began working for Law Engineering Testing Company Inc., performing subsurface investigations for a multitude of government projects the most significant being the Metro Rail System.

    Want to know more about the challenges Al Brizuela has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Brizuela’s April 2025 Report is a Supplement

    Westchester claimed that Brizuela’s “supplemental” affidavit is not a supplement at all. Rather, it presents entirely new facts, evidence, and substantially revised expert opinions that were not previously disclosed.

    The Court held that Brizuela’s updated report is properly characterized as a supplement, not a new disclosure. That is because the only change was to correct his prior estimate by applying depreciation. It includes no new model for calculating damages, new methodology, or new claim for damages to certain parts of the building that were not previously made.

    Even the portions of the initial and supplemental affidavits Westchester highlights shows that the only difference is Brizuela omitted applicable depreciation in his initial report. Since Brizuela’s supplemental report sought to correct a mistake (omitted depreciation), the Court held that it fell within the narrow purpose of Rule 26(e).

    B. Brizuela’s Supplement Was Timely

    According to Rule 26, Plaintiff had up to its pretrial disclosures, which are due July 11, 2025, to correct any inaccuracies. 

    Westchester offered no support for its conclusory argument that any supplement was due earlier. The Court held that Westchester does cite several cases that deal with prejudice caused to the party left without the chance to depose an expert after the discovery deadline. But prejudice (even if it exists) cannot override the deadlines in Rule 26. In any event, as discussed below, any prejudice can be remedied.

    C. Supplementation Was Harmless

    When a party fails to provide information required by Rule 26, as Westchester claims, they are “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 is harmless.”

    Weighing these factors, the Court found that any Rule 26 violation harmless. Brizuela’s testimony and repair estimates are seemingly critical. Without him, Plaintiff’s case may end. Though discovery has closed, Brizuela will make himself available for deposition. With this, Westchester can cure the deficiency. Westchester offers no argument that it would have to re-brief summary judgment if the supplement is allowed. The deposition is the better option considering the importance of the evidence.

    Westchester also sought to exclude the Brizuela’s supplement. The Court held that Plaintiff’s conduct, at least at this point, does not warrant excluding testimony that may prove essential to its case when any prejudice can still be cured.

    The Court, therefore, is convinced that Plaintiff should be allowed to supplement Brizuela’s expert disclosure.

    Held

    The Court denied Westchester’s motion to strike Plaintiff’s untimely supplemental expert witness affidavit and estimate of Alfredo Brizuela.

    Key Takeaway:

    Rule 26(e) permits supplemental reports only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.

    Case Details:

    Case Caption: LJP Building LLC V. Westchester Surplus Lines Insurance Company
    Docket Number: 2:23cv792
    Court Name: United States District Court for the Middle District of Florida, Fort Myers Division
    Order Date: April 18, 2025
  • Internal Medicine Expert Witnesses Barred from Testifying Due to Procedural Violations

    Internal Medicine Expert Witnesses Barred from Testifying Due to Procedural Violations

    On October 10, 2023, Kathleen Loveall (Plaintiff) initiated this wrongful death action on behalf of her husband, James Loveall, naming the Government as a defendant under the Federal Tort Claims Act. The Court established September 23, 2024, as the deadline for Loveall’s expert designations. Loveall requested extensions of this deadline three times, without opposition from the Government, and the Court granted each request. The final deadline for expert designations was set for November 13, 2024.

    On that date, Loveall designated Rajesh Bhagat, M.D., and Christopher Bourean, M.D., as an expert witnesses. The Government subsequently moved to strike these expert designations, asserting noncompliance with the expert designation requirements of Federal Rule of Civil Procedure 26(a). Loveall did not file a response, and the time to do so has expired.

    Internal Medicine Expert Witnesses

    Rajesh Bhagat

    Dr. Rajesh Bhagat graduated from University College of Medical Sciences, University of Delhi, India (1983). After two years as an intern and houseman at Safdarjang Hospital, Delhi, he joined Vallabhbhai Patel Chest Institute (VPCI), University of Delhi. As a PGY 1-3, he graduated with a Diploma and an MD in Respiratory Diseases with honors. He served another three years as a Registrar at the same institution, where his research interests included ABPA and Asthma. This research led him to Dr. Cockcroft at the Royal University Hospital in Saskatoon, Canada. As a Research Fellow of the Saskatchewan Lung Association, he worked on the detrimental effects of regular use of beta-2 agonists (1993-1995). These studies were cited in the NIH National Asthma Education and Prevention Program-2.

    After three years of residency in Internal Medicine at the University of Missouri-Columbia (1995-1998), he worked as a fellow in Pulmonary & Critical Care Medicine at Duke University Medical Center, NC (1998-2002). At Duke, he conducted research on lung injury and fibrosis. Since 2002, at UMMC and the VA in Jackson, he has enjoyed being a clinician, administrator, teacher, and researcher. His current focus is paraquat-induced lung injury, as well as mentoring and advising fellows and faculty.

    Get the full story on challenges to Rajesh Bhagat’s expert opinions and testimony with an in-depth Challenge Study.   

    Christopher Bourean

    Dr. Christopher Michael Bourean specializes in hospital-based internal medicine. In April 2019, Bourean served as a resident at the G.V. (Sonny) Montgomery VA Medical Center (“VAMC”) in Jackson, Mississippi, where he gained valuable clinical experience.

    Want to know more about the challenges Christopher Bourean has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    i. Defendant’s Arguments 

    The Government asked this Court to strike Loveall’s expert designations of Bhagat and Bourean as inadequate under both Rule 26(a)(2)(B) and Rule 26(a)(2)(C). Loveall’s designations state that Bhagat and Bourean’s expected testimony will be based on, among other things, their “treatment of the plaintiff and review of the medical records.” However, no written reports have been submitted for either physician, precluding compliance with Rule 26(a)(2)(B). Additionally, both Bhagat and Bourean executed declarations contradicting the opinions Loveall attributed to them, further undermining her designations. That Loveall’s designated experts are treating physicians does not excuse her from the obligation to properly disclose their opinions and the facts and data that form the bases of those opinions.

    ii. Analysis

    Even if a report were not required, Loveall’s designations fail to meet the standards of Rule 26(a)(2)(C). While Loveall sufficiently identified the subject matter of the witnesses’ testimony—critical care medicine for Bhagat and hospital-based internal medicine for Bourean—her disclosures do not satisfy the second prong of Rule 26(a)(2)(C). Specifically, Loveall expects both physicians to testify that the cause of death was acute respiratory failure likely due to pulmonary embolism, but she has provided no explanation of facts to support these opinions. Proper disclosure requires a clear and detailed explanation of the facts, data, and opinions to allow the opposing party to prepare rebuttal testimony. Instead, Loveall’s designations merely restate allegations from her complaint, rendering them insufficient under Rule 26(a)(2)(C).

    The Court also found that striking the expert designations was an appropriate remedy. While Loveall identified the witnesses, her deficient disclosures and failure to properly comply with applicable rules warrant enforcement of local rules and scheduling orders. The testimony of Bhagat and Bourean is crucial to Loveall’s case, underscoring the importance of compliance with deadlines. The Government has demonstrated prejudice arising from continued delays, which impedes its ability to prepare for trial. Furthermore, the Court finds no reason to believe that a continuance would cure the deficient designations due to Loveall’s repeated extensions and her failure to respond to the Government’s motion. Because at least three of the four factors weigh in the Government’s favor, the Court finds striking Loveall’s designations is an appropriate remedy.

    Held

    The Court held that Loveall failed to comply with Federal Rule of Civil Procedure 26(a) and Local Uniform Civil Rule 26(a). It granted the Government’s motion to strike Loveall’s expert designations as unopposed under Local Rule 7(b)(3)(E) and found the Government’s arguments independently persuasive. Accordingly, the Government’s motion against Rajesh Bhagat and Christopher Bourean was granted.

    Key Takeaway:

    When deciding whether striking an expert witness is appropriate for such a failure, the Court considers four factors to determine if the failure was substantially justified or harmless: (1) the explanation for the failure to identify the witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure that prejudice.

    Applying these factors, the Court found that Loveall failed to identify the witnesses properly. The Government demonstrated potential prejudice in its ability to prepare for trial if the testimony were allowed. The Court also determined that a continuance would not cure the deficiencies. This was especially true given Loveall’s repeated extensions and failure to act.

    Case Details:

    Case Caption: Kathleen Loveall V. United States Of America
    Docket Number: 3:23cv2998
    Court: United States District Court for the Southern District of Mississippi, Northern Division
    Order Date: December 31, 2024
  • Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.

    In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.

    The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.

    Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024. 

    Pediatrics Expert Witness

    Pediatrics Expert Witness

    Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard. 

    After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University. 

    Want to know more about the challenges Ofer Levy has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    Dispute Over the Nature of Ofer Levy’s Report

    The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.

    Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.

    The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.

    Violation of Federal Rule of Civil Procedure 37(c)(1)

    Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.

    Factors for Exclusion Sanction

    To decide whether exclusion was appropriate, the Court considered several factors:

    1. The public’s interest in the swift resolution of litigation.
    2. The Court’s need to manage its docket efficiently.
    3. The risk of prejudice to the Defendant.
    4. The public policy favoring the resolution of cases on their merits.
    5. The availability of less severe sanctions.

    The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.

    Held:

    The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.

    Key Takeaway:

    The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).

    Please refer to the blogs previously published about this case:

    Case Details:

    Case caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Dated: November 17, 2024
  • Court Will Not Preclude Marketing Expert Witness From Testifying at Trial on the Basis of Untimely Disclosure

    Court Will Not Preclude Marketing Expert Witness From Testifying at Trial on the Basis of Untimely Disclosure

    On May 20, 2020, Plaintiffs filed the complaint initiating this action against Defendants for allegedly conspiring to acquire Plaintiffs’ personal and private records from the California Department of Motor Vehicles for the purpose of sending them letters to solicit business in the form of legal representation for litigation against sellers of vehicles they had purchased. 

    Defendants filed a motion to exclude the testimony of Plaintiffs’ expert witness, Larry Londre at trial based on untimely disclosure and lack of qualifications.

    Marketing Expert Witness

    Larry Londre is a marketing executive and analyst with expertise in creating, applying and delivering marketing, advertising, media, business development, sales, brand integrity, collateral programs, and expert witnessing. 

    Since 2002, he has served as an expert witness and has been designated as an expert witness involving Marketing, Advertising, Trademark, Patent, Promotion, Breach of Contract, Unfair Competition, Custom and Practice, Lanham and Robinson-Patman Act Violations, and others.

    Get the full story on challenges to Larry Londre’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    According to Plaintiffs, Defendants were first aware in March 2023 that Plaintiffs designated Londre as their expert when they concurrently filed his declaration in support of their opposition to Defendants’ first motion for summary judgment. Defendants were also made aware of Londre following the lifting of the stay of this case when Plaintiffs formally listed Londre as their expert witness in their supplemental disclosures made pursuant to Federal Rule of Civil Procedure 26 on February 26, 2024. Defendants do not dispute this timeline or the fact that they were aware of Plaintiffs’ designation of Londre, but they assert that these dates are not relevant because Londre’s expert report was not provided until March 14, 2024.

    Plaintiffs learned for the first time that Defendants intended to move for exclusion of Londre’s testimony at trial because they believe Plaintiffs did not timely disclose Londre as their expert witness. Consequently, on that same day, Plaintiffs filed the pending motion for relief from the expert witness disclosure deadline, if necessary, to permit Londre to testify at trial notwithstanding Defendants’ assertion that he was not timely disclosed.

    Plaintiffs asserted that their inadvertent failure to timely disclose Londre was excusable neglect under these circumstances given the confusion caused by the Court’s orders staying this case, lifting the stay, and modifying the schedule as to certain dates while remaining silent as to other dates, including the expert disclosures deadline. Plaintiffs also asserted that even under Defendants’ interpretation of the court’s orders, Plaintiffs’ disclosure on March 14, 2024 was only 66 days past the January 8, 2024 disclosure deadline and thus its late disclosure was harmless to Defendants, particularly because Defendants expressed no interest in deposing Londre or need for more time to prepare for trial in light of the late disclosure.

    Analysis

    Rule 26

    The Court finds under the circumstances of this case that Plaintiffs’ disclosure of Londre two months late was harmless to Defendants. Federal Rule of Civil Procedure 37 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 is harmless.” 

    Notably, in their opposition to Plaintiffs’ motion, Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. Defendants instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Curiously, while that motion was under submission, Defendants did not file any motions for relief due to any such perceived harm, and even after the motion was denied, Defendants did not file any motions for reconsideration either. As noted above, Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure. The Court is therefore not persuaded by Defendants conclusory assertion that Plaintiffs’ late disclosure of their expert witness was not harmless.

    Rule 702

    To the extent Defendants’ pending motion to exclude Londre’s testimony at trial is based on untimely disclosure, that motion will be denied by the Court. However, to the extent Defendants’ motion is based on the purported inadmissibility of Londre’s testimony pursuant to Federal Rule of Civil Procedure 702, that motion will also be denied by the Court, albeit without prejudice to Defendants filing an appropriate motion in limine to exclude Londre’s testimony on that basis—indeed, an issue Defendants should be better positioned to address after deposing Londre and probing his qualifications.

    Held

    The Court will grant Plaintiffs’ motion and will not preclude Londre from testifying at trial on the basis of untimely disclosure. As for next steps, the Court is not persuaded that Defendants have any actual interest in deposing Londre. Nevertheless, out of an abundance of caution, the Court will reopen expert discovery for a period of 60 days (equal to the approximate amount of time that Plaintiffs’ disclosures were made past the disclosure deadline) for the limited purpose of permitting Defendants to depose Londre.

    Key Takeaway:

    Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. They instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure.

    Case Details:

    Case Caption: Akkawi Et Al V. Sadr Et Al
    Docket Number: 2:20cv1034
    Court: United States District Court, California Eastern
    Order Date: November 18, 2024
  • Court Strikes Structural Engineering Expert Witness’ Testimony on Hurricane Damage Citing Month-Long Disclosure Delay

    Court Strikes Structural Engineering Expert Witness’ Testimony on Hurricane Damage Citing Month-Long Disclosure Delay

    Philip and Nancy Fairman’s home sustained severe flooding during Hurricane Ian. After the storm, they filed a damage claim with their insurer, Defendant American Strategic Insurance Corp (“ASI”), to seek compensation for the losses. ASI acknowledged coverage but disputed the extent of the damage. When the Fairmans and ASI could not reach a settlement, the Fairmans initiated a lawsuit to pursue their claim further.

    To facilitate discovery, the Court conducted a status conference and issued a scheduling order, requiring both parties to submit their Rule 26 expert disclosures by August 30, 2024. However, ASI failed to disclose its structural engineering expert witness, Brian Lindsey and did not provide the Fairmans with his report until nearly a month later, on September 26, 2024. ASI attributed this delay to an “oversight.”

    In response, the Fairmans filed a motion to strike ASI’s delayed expert disclosure. They also asked the Court to bar ASI from using Lindsey’s report or testimony in dispositive motions. Additionally, they asked that Lindsey be barred from testifying at trial, asserting that ASI’s failure to meet the deadline could adversely affect their case.

    Structural Engineering Expert Witness

    Structural Engineering Expert Witness

    Brian Lindsey, P.E., has over 20 years of forensic experience in cases involving damage assessments of design/construction defects, collapse of structures, vehicle impacts, structural fire damage, water intrusion, foundation movement, snow load failures, site drainage, wind damage, hail damage, exterior wall cladding damage and roofing systems damage.

    Want to know more about the challenges Brian Lindsey has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Federal Rule of Civil Procedure 26 governs expert witness disclosures, aiming to prevent surprises in litigation and ensure parties can adequately prepare their cases. The rule mandates that parties disclose the basis of their expert opinions on time. Compliance with Rule 26 is not aspirational; it is mandatory. When a party fails to meet these obligations, Rule 37(c) grants the court discretion to exclude the expert unless the violation was substantially justified or harmless.

    ASI, having violated Rule 26, bore the burden of proving that its noncompliance was either justified or harmless. Substantial justification exists when reasonable minds could differ on the need to comply. Harmlessness, however, involves considering factors such as the element of surprise, the opposing party’s ability to address it, potential disruption to the trial, the evidence’s significance, and the reason for the failure to disclose.

    ASI did not argue that its conduct was substantially justified, nor did it address the factors necessary to establish harmlessness. Instead, ASI attributed the delay in disclosing its expert to an “oversight” and sought leniency, claiming no intentional violation or prejudice to the Fairmans. However, these explanations do not meet the required standard. Courts have consistently held that excuses such as oversight or clerical errors are insufficient to justify noncompliance with Rule 26.

    Consequently, ASI failed to satisfy its burden. The Court held that ASI cannot call Brian Lindsey as a witness or use his report as evidence in motions, hearings, or trial proceedings.

    Held

    The Court granted the Plaintiffs’ motion to strike Defendant American Strategic Insurance Corp.’s Rule 26 expert disclosure as untimely. Further, structural engineering expert witness Brian Lindsey’s report and expert testimony were stricken and excluded from further consideration in the lawsuit.

    Key Takeaways:

    The Court excluded ASI’s structural engineering expert witness, Brian Lindsey, and his report due to ASI’s failure to comply with Federal Rule of Civil Procedure 26, which mandates timely disclosure of expert witnesses to prevent trial surprises and ensure adequate case preparation.

    ASI did not provide substantial justification for its month-long delay nor argued that the delay was harmless. Instead, ASI claimed the missed deadline resulted from an “oversight.” The Court found this explanation insufficient, emphasizing that clerical errors and oversight do not excuse Rule 26 violations. In conclusion, the Court granted the Fairmans’ motion to strike Lindsey’s testimony, barring ASI from using his evidence at any stage of the litigation.

    Case Details:

    Case caption: Fairman v. Am. Strategic Ins. Corp.
    Docket Number: 2:23cv788
    Court: United States District Court for the Middle District of Florida, Fort Myers Division
    Dated: November 13, 2024
  • Extensive and Complicated Report by Architecture Expert Witness Admitted Despite Claims of Insufficient Disclosure

    Extensive and Complicated Report by Architecture Expert Witness Admitted Despite Claims of Insufficient Disclosure

    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.

    Get the full story on challenges to Jeffrey Mason’s expert opinions and testimony with an in-depth Challenge Study. 

    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