Kevin Brent Buchanan had been charged with making threatening interstate communications. Specifically, the charges stemmed from five voicemails he allegedly left. The Government alleged that Buchanan recorded these voicemails from Utah. These voicemails, sent in late October 2023, targeted an organization that was headquartered in the District of Columbia.
To defend himself, Buchanan designated Dr. Glen E. Johnson as an expert witness. Johnson is a board-certified psychiatrist. Evidently, he was expected to testify about Buchanan’s mental state. This testimony would relate to the time of the alleged offenses.
Johnson was prepared to testify that Buchanan suffered from severe PTSD and recurring panic disorder. According to Johnson, Buchanan’s diagnoses means that Buchanan is prone to react reflexively and with poor impulse control. Johnson also stated that Buchanan “has never demonstrated any violence” or “following through with threats,” and he “poses no risk to anyone.” However, Buchanan has not submitted an expert report from Johnson, and neither his expert disclosure notice nor the accompanying attachments clearly set out the bases and reasons for Johnson’s opinions.
Consequently, the Government filed a motion in limine requesting an order precluding Buchanan from offering evidence or argument at trial in support of a diminished capacity defense.
Psychiatry Expert Witness
Dr. Glen E. Johnson graduated medical school 54 years ago and has spent the past 54 years in the field of psychiatry. Johnson has been an independently practicing psychiatrist for 47 years. Moreover, he became board-certified nearly 46 years ago. Johnson was a clinical instructor at the University of Utah Medical Center, Department of Psychiatry, for twelve years. Additionally, he was chairman of the Pioneer Valley Hospital Department of Psychiatry from 1986 through 1988, and has otherwise been affiliated with that hospital for 47 years.
Johnson’s proffered expert witness testimony about Buchanan’s reflexive and impulsive reactions could be relevant and helpful to the jury’s assessment of whether Buchanan had the requisite mens rea to commit the crimes with which he is charged in this case.
i. Reliability
First of all, Johnson must not express an expert opinion to the jury about whether Buchanan was “unable to formulate the requisite specific intent to violate the statutes pursuant to which he is charged in the indictment.”
In other words, the Court held that a core part of the proffered expert opinion testimony described in Buchanan’s witness designation is plainly inadmissible.
Second, Buchanan’s expert disclosure statement omitted necessary details about the scope of and basis for any other expert opinions that Johnson might be prepared to offer.
Moreover, the Court observed that Buchanan’s opinion witness designation suggested that he may be planning to call Johnson both as a lay witness and as an expert witness, but Buchanan failed to delineate which topics Johnson will address as a lay witness and which he will address as an expert
ii. Qualifications
The government argued that Johnson’s background lacked specific experience in forensic psychiatry, questioning the relevance of his testimony in assessing Buchanan’s mental state at the time of the alleged offenses.
However, the Court noted that Johnson was qualified in general-practice psychiatry due to his decades of practice and board certification in that field.
Therefore, the Court focused on whether Johnson’s experience and board certification in general-practice psychiatry were sufficient to provide expert testimony on Buchanan’s mental health, diagnoses, and related symptoms. According to the Court, if Johnson qualifies, his testimony will need to closely adhere to his expertise as a psychiatrist. In other words, he must testify based on expertise. However, the Court deferred final ruling on the reliability and admissibility of this testimony until after the forthcoming evidentiary hearing.
Held
The Court granted in part, denied in part, and held in abeyance in part the government’s motion in limine .
Specifically:
The Court precluded Dr. Glen Johnson from opining on whether Buchanan did or did not have a mental state that constitutes an element of the crimes charged, including an opinion about whether he was capable of forming that mental state.
Buchanan was ordered to produce a revised Rule 16(b)(1)(C) expert disclosure statement on or before April 25, 2025, containing “a complete statement” of all expert opinions that Buchanan intends to elicit from Johnson.
An pretrial evidentiary hearing was set to evaluate Johnson’s qualifications as an expert in general-practice psychiatry and the exact scope for any expert opinion testimony that Johnson intends to offer that would be admissible at trial.
Buchanan was allowed to introduce lay witness opinion testimony that is relevant to whether Buchanan was conscious of wrongdoing at the time of the alleged acts for which he is charged in this case.
The Court deferredfinal ruling on the admissibility under Federal Rule of Evidence 403 of the evidence at issue in the Government’s motion until the relevant issues arise at the forthcoming evidentiary hearing or at trial.
Key Takeaway:
Expert testimony regarding a Defendant’s mental state is strictly limited. Experts cannot offer opinions on whether the Defendant possessed the required mental state to commit the crime; their testimony must focus on diagnoses, the basis for those diagnoses, and the characteristics of relevant mental conditions.
Case Details:
Case Caption:
United States V. Buchanan
Docket Number:
1:24cr256
Court Name:
United States District Court for the District of Columbia
Ink 477, LLC and Grove Ink, LLC, operating the Miami restaurant and bar “Amal” and “Level 6,” are accused by former employee Jose Petersen of violating the Fair Labor Standards Act (FLSA). Petersen, who worked as waitstaff at Amal from June to September 2022 and then at Level 6 from May to September 2023, claims the companies failed to pay him proper overtime, withheld agreed-upon service charges, and illegally confiscated portions of his earned tips.
As mandated by the Court’s scheduling order, the Defendants submitted their expert disclosures on October 18, 2024, identifying Christopher Nadeau as a forensic accounting and valuation expert. Nadeau’s report, which included an appendix listing the documents he reviewed, was provided. However, the actual documents themselves were not attached.
A week later, on October 25, 2024, the Plaintiff filed a motion arguing that the Defendants’ disclosure was insufficient. The Plaintiff claimed that Nadeau’s report vaguely referenced the reviewed documents, making them difficult to locate within the Defendants’ existing document production. They asserted that Rule 26 of the Federal Rules of Civil Procedure does not require the opposing party to search for the data used by the expert. Consequently, the Plaintiff argued that the Defendants failed to comply with the scheduling order because Nadeau’s report did not include the “facts or data” he analyzed.
Prior to the Defendants’ response, the Court held a discovery hearing on November 4, where the Plaintiff demanded the “31 documents” Nadeau reviewed. The Court rejected this interpretation of Rule 26, stating that it does not require experts to attach all underlying documents to their reports. The Court subsequently issued a written order confirming that listing the reviewed documents in an appendix, as Nadeau did, is standard litigation practice.
Accounting Expert Witness
Christopher M. Nadeau, CPA, CMA, CVA, is a forensic accounting professional and valuation analyst with experience supporting litigation across a range of commercial disputes. His work primarily focuses on economic damages analysis and business valuation for various industries including automobile dealerships, manufacturing, restaurants, and real estate.
He specializes in calculations related to personal injury and wrongful termination cases.
Nadeau is a licensed Certified Public Accountant in the State of Massachusetts. He also holds credentials as a Certified Management Accountant (CMA) from the Institute of Management Accountants and as a Certified Valuation Analyst (CVA) from the National Association of Certified Valuators and Analysts.
In their response to the Plaintiff’s motion, the Defendants cited the Court’s ruling, emphasizing that Rule 26(a)(2) only requires identification of the reviewed items, not their production. The Plaintiff, in their reply, countered by stating that the Defendants did not produce the relevant discovery documents until November 1, after the initial discovery deadline, the expert disclosure deadline, and the filing of their motion.
The Plaintiff’s central claim is that the Defendants’ expert disclosure was deficient because it lacked the underlying “facts or data” used by the expert. However, the Court maintained that Rule 26 did not mandate attaching all supporting documents to an expert report. While not required to provide all raw data, the Defendants did furnish a link to the documents listed in the expert’s appendix. Furthermore, the Plaintiff received this link well in advance of the discovery deadline and trial, ensuring sufficient notice of the expert’s opinions and supporting data. The Court ruled that Nadeau’s report provided the correct kind of appendix, and that was all he needed to do to satisfy Rule 26.
Held
The Court denied the Plaintiff’s motion to strike Defendants’ expert disclosures.
Key Takeaway:
While the language of Rule 26 could be construed to support the Plaintiff’s argument, the courts have consistently interpreted it otherwise. Rule 26 requires a statement of the data considered by the expert, but does not require the expert to include the data itself.
In a recent case involving a police shooting in Las Cruces, the admissibility of expert testimony became a central point of contention. The Plaintiff, who sustained injuries during the incident, sought to introduce Dr. Alen Ternian as a pain management expert. However, the Defendants challenged Ternian’s testimony, raising significant concerns about the completeness and reliability of his expert report.
Ternian was retained to provide expert opinions on the Plaintiff’s pain management as it related to the incident. However, the Defendants argued that the Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires a complete statement of all opinions and the basis and reasons for them. Specifically, the Defendants pointed out that Ternian’s initial report lacked crucial supporting data and facts.
Anesthesiology Expert Witness
Alen Ternian is a board-certified anesthesiologist, with a history of practice that necessarily deals with the treatment of patients in pain. His employment history includes a medical practice and associate professor lecturer and examiner at Ceder Sinai Medical School.
The core of the Defendants’ objection centered on the Plaintiff’s alleged failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B). They argued Ternian’s report lacked the underlying facts and data supporting his conclusions.
Defendants objected to the late and disorganized production of discovery materials, including a large volume of unorganized medical records and the delayed provision of Ternian’s curriculum vitae. This hindered their deposition preparation.
Defendants emphasized Ternian’s own statements revealed his opinion was incomplete, as he stated further medical imaging was necessary, but this was never obtained. Along with Rule 26, the Defendants also moved to exclude the opinions and testimony of Ternian, pursuant to Federal Rules of Evidence 403 and 702.
The Defendants requested the Court to exclude late-produced records, prevent further disclosures, exclude Ternian’s testimony, and/or hold a Daubert hearing.
Plaintiff’s Opposition:
The Plaintiff countered that they provided relevant medical records and information, arguing the Defendants had access to necessary records prior to Ternian’s deposition.
Plaintiff disputed discovery violation claims, asserting they were responsive to requests and did not disobey orders, arguing exclusion would be an improper sanction.
Plaintiff argued that during the deposition, the defense questioned Ternian about his initial report and his methodology, and therefore they had a fully informed deposition.
Court’s Observations
The Defendants provided the Plaintiff with multiple opportunities to rectify these deficiencies. However, instead of providing the requested data, the Plaintiff produced a large volume of unorganized medical records and delayed the disclosure of Ternian’s curriculum vitae until after his deposition. This delayed disclosure severely hampered the Defendants’ ability to adequately prepare for the deposition and challenge the expert’s opinions.
Rule 37 Sanctions and the “Harmless or Justified” Test:
The Court found that Ternian’s report was incomplete because it relied on medical imaging (CT scans and ultrasounds) that were never performed. Ternian himself acknowledged the need for further information to provide a complete medical opinion. This failure to obtain necessary data violated Rule 26, which led the Court to consider sanctions under Rule 37(c)(1).
Under Rule 37(c)(1), if a party fails to provide information required by Rule 26(a), they are generally prohibited from using that information or witness at trial, unless the failure was substantially justified or harmless. The Court considered factors such as prejudice to the Defendants, the ability to cure the prejudice, potential disruption of the trial, and the Plaintiff’s bad faith or willfulness.
The Court’s Ruling:
The Court determined that the Plaintiff’s violations of Rule 26 were not justified or harmless. The Defendants were prejudiced by the incomplete report and the late disclosure of records. The Court highlighted the Plaintiff’s failure to obtain necessary medical scans and the disorganized and delayed production of medical records. Although the Court did not find bad faith on the part of the Plaintiff, the other factors weighed heavily in favor of excluding Ternian’s testimony.
Held
The Court found that Plaintiff’s expert, Dr. Alen Ternian, failed to comply with Rule 26’s expert disclosure requirements which was not substantially justified or harmless. Therefore, the Court granted Defendants’ motion to exclude and Ternian was excluded from giving testimony at trial pursuant to Rule 37.
Key Takeaways:
Timely and organized disclosure of expert information is essential for effective cross-examination and trial preparation.
Compliance with Rule 26 is crucial for the admissibility of expert testimony.
Failure to provide a complete and well-supported expert report can lead to exclusion of testimony under Rule 37.
Courts consider various factors, including prejudice and the ability to cure, when determining whether a Rule 26 violation is harmless or justified.
Plaintiff Aaron Edwards filed this lawsuit against his former employer, Defendant First Trust, alleging that he was terminated in retaliation for engaging in purported whistleblowing activities. He asserted claims under the anti-retaliation and whistleblower protection provisions provide under the Sarbanes-Oxley Act (“SOX”), the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), and the Consumer Financial Protection Act (“CFPA”).
Michael Spindler is Plaintiff Aaron Edwards’ retained damages expert. He was designated on August 22, 2024, and produced his expert report on October 3, 2024 (the “Original Report”), which was the deadline for Edwards to serve his expert reports.
The Court set a November 14, 2024, deadline for the parties to complete discovery. And this case is set for trial on February 24, 2025.
In his original report, Spindler opined that Edwards was entitled to $5,920,897 in lost earnings (after subtracting the value of his mitigating earnings). Spindler forecasted the value of Edwards’ lost earnings through his projected retirement at age 67 using a “conservative” compound annual growth rate (“CAGR”) of one percent.
Edwards provided First Trust with an addendum to Spindler’s original report for mediation purposes on October 25, 2024 (the “Mediation Report”). In his Mediation Report, Spindler opined that Edwards was entitled to $15,133,349 using a 7.6 percent CAGR.
First Trust timely served its rebuttal expert report on November 13, 2024.
On February 11, 2025, Edwards produced Spindler’s supplemental report. The supplemental report provided an “alternative damages calculation,” which opined that Edwards is entitled to $11,052,917 using a 5.4 percent CAGR.
Michael Spindler is a CPA and Certified Fraud Examiner who brings over 40 years of experience to complex disputes including matters related to forensic accounting and business fraud investigations across a wide range of industries. He has provided expert testimony on dozens of occasions in bench trials, jury trials and arbitration proceedings. He has provided Foreign Corrupt Practices Act investigations and training services in various countries around the world, including China, Russia, India and Saudi Arabia.
Specifically, First Trust objected to Spindler’s opinion regarding Edwards’ alleged entitlement to monies from First Trust’s discretionary bonus program known as the “Jerries Bonus,” which served as a basis for applying a 5.4 percent CAGR to calculate Edwards’ lost earnings of $11,052,917 (after subtracting the value of his mitigating earnings).
Spindler’s original report opined that Edwards was entitled to $5,920,897 using a CAGR of one percent. Edwards contended that the methodology applied in the original report and supplemental report was the same. And, Edwards said, “for all practical purposes, the only difference in the damages calculation set forth in the original report and the alternative damages calculation set forth in the supplemental report is changing one number (i.e., the CAGR percentage) in the same equation.”
However, the Court disagreed with this characterization of Spindler’s supplemental report. Moreover, Edwards’ distinction between a “methodology” and “calculation” in attempting to justify the contents of his supplemental report was not persuasive.
The result is materially different, regardless of how CAGR is classified, considering that the increase in CAGR from one to 5.4 percent almost doubles Spindler’s damages approximation in his original report. And Edwards did not point to any newly produced information that Spindler relied on to develop his supplemental report calculation. And, so, Spindler’s supplemental report consisted of an untimely expert opinion that is based on information available before the deadline for expert disclosures and that departs from his original report in material respects.
Basically, Edwards offers no explanation regarding the timing of his supplemental disclosure – less than two weeks before the start of trial. But he contended that First Trust is not prejudiced by the supplemental report.
Mediation Report
Edwards asserts that any alleged surprise or prejudice was belied by Spindler’s mediation report, which was provided to First Trust on October 24, 2024, before First Trust’s rebuttal expert disclosed his report.
In his mediation report, Spindler opined that Edwards was entitled to $15,133,349 using a 7.6 percent CAGR. And, so, Edwards asserted that “First Trust and its rebuttal expert knew Spindler developed an alternative damages calculation using a higher CAGR percentage months ago.”
The mediation report may have provided First Trust with notice of Edwards’ intent to use a greater CAGR percentage to calculate damages. But, when Edwards did not timely supplement Spindler’s expert report for Rule 26 purposes, First Trust had reason to believe that Edwards would not rely on this “alternative damages calculation” for trial. Also, Edwards himself characterized the mediation report as “for mediation purposes only.”
And he further admitted that the CAGR used in the supplemental report (5.4%) lies between the original report (1%) and the mediation report (7.6%).
Therefore, the Court is not persuaded by Edwards’ argument that the “alternative damages calculation” disclosed in the mediation report – prepared only for mediation – absolves him of his failure to timely disclose the Supplemental Report.
And, even insofar as First Trust provided the mediation report to its rebuttal expert, it would still be prejudicial to allow a new damages calculation two weeks before the start of trial.
As noted above, the Court is not persuaded by Edwards’ argument that the supplemental report uses the same “methodology” generally – especially because the “methodology” involving a higher CAGR is based on the mediation-only report of several months ago. Edwards could have disclosed the supplemental expert report for purposes of trial at that time but did not.
Held
In conclusion, the Court granted Defendant First Trust’s motion to strike the supplemental report of Plaintiff’s retained expert Michael Spindler.
Key Takeaway:
Even if an allegedly supplemental report is untimely, to assess whether to permit testimony based on an untimely supplemental expert report, the Court, in exercising its discretion, considers (1) the explanation for making the supplemental disclosure at the time it is made; (2) the importance of the supplemental information to the proposed testimony of the expert, and the expert’s importance to the litigation; (3) potential prejudice to an opposing party; and (4) the availability of a continuance to mitigate any prejudice.
However, Edwards offers no explanation regarding the timing of his supplemental disclosure – less than two weeks before the start of trial.
This lawsuit stems from a motor vehicle accident. The two-vehicle collision occurred around 12:12 P.M. on January 4, 2023 in the left northbound lane of U.S. Highway 45, a divided four lane highway.
On the date and time in question, Plaintiff Kimberly Allcorn was driving a 2019 Kia Forte in the right lane of northbound traffic. She had been in Tupelo, Mississippi to pick up her car from a repair shop, and she intended to return to her residence in Corinth, Mississippi. Defendant Pamela Kay Beach was operating a 2023 Kenworth tractor-trailer truck that was owned by Western Express. Allcorn was traveling ahead of Beach on the roadway, both heading in the same direction.
After her vehicle began to exhibit additional problems, Allcorn decided to return to Tupelo. She switched from the right to the left lane of northbound traffic in an effort to proceed into a turn lane so that she could turn around and drive south back to Tupelo. Prior to the collision, Beach was traveling in the left lane at a higher rate of speed than Allcorn. When Allcorn switched into the left lane, Beach applied her brakes but a collision between the vehicles nonetheless occurred with the front of Beach’s tractor impacting the back of Allcorn’s car.
The posted speed limit in the area was 65 mph. The dash cam footage indicated that Beach was traveling 71 mph before she applied her brakes.
Allcorn filed suit against Beach and Western Express. She brought claims for negligence and negligence per se. On June 10, 2024, Allcorn designated Soan Chau as her expert in accident reconstruction. Chau prepared two reports summarizing his conclusions about the case. Defendants contended that the Court should prevent Chau from testifying because his opinions fell below the requisite threshold for expert testimony.
Accident Reconstruction Expert Witness
Soan Chau is a transportation consultant specializing in vehicular accidents with over twenty years of experience in analyzing cases involving passenger cars, tractor-trailers, motorcyclists, bicyclists, and pedestrians. He has analyzed over a thousand cases and has been intimately involved in scene preservation and documentation, surveying, reconstruction, simulation, animation, human factors and other transportation related matters.
Chau is also a certified Event Data Recorder (commonly known as “black box”) analyst and retriever, for both commercial vehicles and passenger cars.
In his initial report dated June 7, 2024, Chau opined that based on his calculations involving time, speed, and distance, Beachcould have avoided the collision if she had been traveling 65 mph when Allcorn initiated her lane change from the right lane to the left lane.
On July 8, 2024, the Defendants’ accident reconstruction expert witness, Benjamin Smith, prepared his written report. Smith identified errors in Chau’s calculations—namely, Smith opined that the calculations contained in Chau’s report equated to Beach’s speed being 76 mph, which is demonstrably false based on the dash cam footage indicating that she was traveling 71 mph. Smith ultimately concluded that based on his own calculations, even if Beach had been traveling at the posted speed limit of 65 mph, she could not have avoided the collision.
After Smith pointed out the errors in Chau’s calculations, Chau prepared a supplemental report. In that report, Chau corrected the mathematical errors that Smith identified. After doing so, Chau again concluded that if Beach had been traveling at 65 mph instead of 71 mph, she could have avoided the collision.
In the supplemental report, Chau reached the following conclusions:
1. Based on the materials that are available at the time of this report, it is safe to conclude that, had the tractor trailer been traveling at the speed limit of 65 mph:
a. There would have been approximately 84 feet between the tractor trailer and the Kia, when the lead vehicle (Kia) arrive [sic] at the same collision point
b. At an 84 feet distance between the vehicles, the tractor-trailer driver would have more time to slow down, make lane change, release accelerator, or brake
c. Kimberly Allcorn would also have entered the left turn lane by the time the tractor trailer arrive [sic] at point of collision
2. Because the tractor trailer was over the speed limit the entire 10 seconds (1.1 second braking) leading up to the collision, the Kia was not able to clear the left travel lane
Defendant’s Arguments
The Defendants emphasized three distinct arguments that they contended constituted bases for the exclusion of Chau’s testimony:
(1) that his opinions were not relevant and did not assist the trier of fact;
(2) that his opinions had “no methodology or principles”; and
(3) that his prior opinions in another case contradicted his opinions here.
Analysis
Relevance
Defendants argued that “Chau’s opinion is that Beach would not have been at the accident scene at the same time as Plaintiff if Beach had not been traveling 70 to 71 miles per hour. Because such an opinion is not valid under Mississippi law, the opinion is irrelevant and must be excluded.” The Defendants contended that multiple Mississippi federal and state court cases supported their contention that Beach’s speed is irrelevant.
The Court found that the Defendants mischaracterized Chau’s conclusions. The Court noted that Chau did not offer any opinion about Beach’s speed earlier in the trip. Instead, he reached conclusions as to whether Beach traveling the speed limit at the time of the collision and the seconds leading up to the collision would have enabled her to avoid the collision.
The Court found it difficult to see how the driver’s speed at the time of the collision, along with a concomitant conclusion that a slower speed would have enabled the Defendant to avoid the accident, lacked significant relevance in a case of this nature. The argument that speed was entirely irrelevant missed the mark. The Court rejected the Defendants’ argument.
Methodology
Initial Report
In his initial report, Chau provided the following information in a section described as “Video Analysis”:
a. currently only 10 seconds of footage before the collision was available
b. 8 seconds after collision
c. Impact occurred at +1.00
d. The 18 second Video Footage does not have evenly spaced time
e. At T= -1.80 seconds, Kia encroached into the left travel lane; the tractor-trailer was traveling at 71 mph
f. At IMPACT T= +1.00, Kia was approximately from auxiliary lane for median break; tractor trailer V=57 mph
g. The total distance traveled by the tractor trailer during 11 seconds (of video footage) prior to collision is approximately 1237 feet
h. Travel distance at 65 mph for 11 seconds is 1049 feet
Based on that information, Chau concluded that, if the tractor trailer had been traveling at the speed of 65 mph, “there would have been approximately 188 feet between the tractor trailer and the Kia, when the lead vehicle (Kia) arrive [sic] at the same collision point.” He additionally concluded that Allcorn “would also have entered the left turn lane by the time the tractor trailer arrived at point of collision.”
Supplemental Report
As noted above, the Defendants’ expert witness, Benjamin Smith, prepared a report that identified errors in Chau’s calculations.
Chau then prepared a supplemental report. In that report, the “Video Analysis” section contains much of the same information listed above but sub-sections (d), (f), and (g) were slightly different and provided as follows:
d. The 18-second video footage appeared to be at approximately 10 Hertz
f. At IMPACT T= +1.00, Kia was approximately 50 feet from beginning of auxiliary lane for median break; tractor trailer V=57 mph
g. The total distance traveled by the tractor trailer during 11 seconds (of video footage) prior to collision is approximately 1133 feet
The supplemental report then goes on to provide the following additional information:
11. Had the tractor trailer was traveling [sic] 65 mph for 11 seconds, there would be approximately 84 feet between the tractor trailer and the Kia Forte when Allcorn arrives that [sic] the same collision point (POC)
12. As seen in the video, this tractor trailer can decelerate from 70-57=13 mph in 1.1 second [sic], traveling a distance of approximately 102 feet
13. At 65mph [sic], the same decelerate [sic] from 65-52=13 mph in 1.1 second [sic], tractor trailer would travel a shorter distance of 94 feet
16. At collision, the Kia Forte’s front bumper appears to be within 20 to 30 feet of the beginning of the auxiliary lane
17. There was approximately 40 to 50 percent overlap between the tractor trailer and the Forte at impact
19. For every incremental seconds [sic] Beach was traveling at 65 mph beyond the 10 seconds (before braking), the incremental increase in distance would be (71-65)1.47=8.8 feet.
He ultimately reaches the same conclusion—that Allcorn would have been able to reach the left turn lane before the collision if Beach had been traveling at 65 mph prior to the collision..
Defendant’s Argument
The Defendants poked numerous holes in Chau’s conclusions. For instance, they noted that he provided no explanation for the change in his calculations from the initial report to the supplemental report. They also emphasized that in the initial report, Chau did not include a specific distance that Allcorn’s vehicle was from the turn lane at the time of the collision but that in page 3 of his supplemental report, he indicated a distance of 50 feet and then later referenced a distance of 20-30 feet. The Defendants ultimately contended that Chau was “simply putting numbers in his report to make it seem scientific.”
While the Court was cognizant of the Defendants’ concerns, it was noted that they concerned the weight of Chau’s testimony, not its admissibility. In his report, Chau included the formula that he used to reach his ultimate conclusion that Allcorn would have been able to reach the left turn lane ahead of Beach (and avoid the collision) if Beach had been traveling at a speed of 65 mph. The Defendants may disagree with those calculations, believe that they contain errors, and/or that they do not take into account all relevant information—the Court held that they will certainly be given an opportunity to cross-examine Chau on those topics at trial.
But to altogether exclude Chau at this stage of the proceedings would go too far, in this Court’s view. The Defendants have not shown that Chau failed to engage in reliable methodology in reaching his conclusions—just that they disagree with those conclusions.
Prior Testimony
Lastly, the Defendants pointed to testimony that Chau provided in a previous case and contended that his testimony here is contradictory to his conclusion in that case. This Court is concerned, however, with the methodology that Chau has employed in this case and whether his methodology is sufficiently relevant and reliable to be admitted into evidence. In other words, the Defendants will be given latitude to cross-examine Chau about his prior testimony; however, this is again an insufficient basis to completely exclude his testimony.
Held
The Court denied the Defendants’ motion to exclude the testimony of Plaintiff’s accident reconstruction expert witness, Soan Chau.
Key Takeaway:
The Court concluded that Chau’s testimony was admissible, primarily because his methodology met the basic threshold for admissibility, even though there were some inconsistencies in his calculations. The Court emphasized three key points in its reasoning:
Relevance: The Court rejected the Defendants’ argument that speed was irrelevant, noting that Chau’s analysis of how the speed limit would have affected the collision outcome was highly relevant to the case.
Methodology: While acknowledging the Defendants’ concerns about calculation changes and inconsistencies in Chau’s reports, the Court determined these were issues of weight rather than admissibility. The Court noted that Chau had included his formula and analytical process in his reports, providing a sufficient methodological foundation.
Prior Testimony: The Court found that potential contradictions between Chau’s current testimony and his testimony in a previous case were matters for cross-examination rather than grounds for exclusion.
Please refer to the blog previously published about this case:
Eric Krajewski alleged that he submitted a claim for hurricane damage that Scottsdale Insurance Company will not pay despite coverage under the parties’ insurance policy. To recover the funds reportedly owed, Krajewski sued for breach of contract.
Krajewski timely disclosed an expert—Phaion Hicks. But according to the record before the Court, Krajewski never provided a corresponding report.
According to Scottsdale, Krajewski has not properly disclosed Hicks as an expert under Federal Rule of Civil Procedure 26(a)(2). Specifically, Krajewski failed “to provide the required expert report.” Scottsdale now moves to “strike Hicks as an expert in this matter and preclude the use of his testimony and opinions at trial.”
Scottsdale labeled Hicks as a retained expert. The Court reasoned that if Hicks was hired to assess and repair Krajewski’s house rather than offer expert testimony in a lawsuit, then this would put him in the non-retained category.
Even treating Hicks as a non-retained expert, the Court found that Krajewski’s disclosure fell short.
Roofing Expert Witness
Phaion Hicks is a professional engineer, certified general contractor and certified roofing contractor. He has years of experience in the field of engineering and regularly performs evaluations to determine the cause, origin, and duration of water damage and roof damage in Florida. Hicks is expected to offer expert opinion based on inspection of the property at issue.
While a non-retained expert need not provide a full report, a party must do more than “identify generic subject areas of anticipated testimony, without identifying the actual substance or content of the opinions.”
While Krajewski’s expert disclosure outlines some of the subjects Hicks will discuss, the Court held that there is no legitimate summary of the facts and opinions. For example, the disclosure states Hicks will “offer expert opinion based on inspection of the property at issue.” Nowhere, however, does Krajewski provide the opinions formed from Hicks’ inspection.
Krajewski did not provide a conforming report by the expert disclosure deadline. And his decision not to respond to Scottsdale’s motion leaves the record silent about whether his conduct was substantially justified or harmless.
The Court held that exclusion was not required because Hicks’ testimony is seemingly critical. Without him, Krajewski’s case may end. Since the discovery is still ongoing, Krajewski’s conduct, at least at this point, does not warrant excluding testimony that may prove essential to his case when any prejudice can still be cured.
Held
The Court granted in part and denied in part Scottsdale’s motion to strike Phaion Hicks as an expert in this matter and preclude the use of his testimony and opinions at trial;
Krajewski must update his disclosure for Hicks by January 31, 2025. It is Krajewski’s burden to assess whether Hicks is retained or non-retained and modify the disclosure accordingly.
If Scottsdale needs additional time beyond the current discovery deadline to depose Hicks or amend its own expert disclosures, the Court will entertain such an extension.
Key Takeaway:
Rule 37(c)(1) continues to give the Court discretion to award alternative sanctions. Exclusion is considered a drastic remedy since it can dictate the outcome and preclude a decision on the merits.
Vicki Oetjens had surgery in October of 2020. Had all gone to plan, a diseased portion of her colon would have been removed, then the healthy ends would have been stapled together. But when the surgical stapler was deployed, no staples fired. This left a hole in Vicki’s large intestine requiring surgical repair. Vicki had to use an ostomy bag until she had a second surgery to reverse the first and reconnect her intestine. When Vicki developed a hernia at the site of her incision, that second surgery led to a third.
So in June of 2022, Vicki and her husband Eric Oetjens sued the entities that manufactured the stapler: Medtronic USA, Inc., Medtronic, Inc., and Covidien LP (collectively “Covidien”).
The Oetjens identified Larry Petersen as a third proposed expert witness. Per their expert disclosures, Petersen is “expected to testify concerning the mechanical use of the subject 28 [mm] EEA Circular Stapler.”
Covidien protests that the Oetjens’ failure to submit an expert report for Petersen violates Rule 26(a)(2)(B) and warrants exclusion of his testimony under Rule 37(c)(1).
The parties agreed that Petersen is a retained expert witness who, pursuant to Rule 26(a)(2)(B), cannot offer expert testimony without first tendering a written expert report. They also agreed that no such written report has been produced. So the only question is whether the Oetjens can avoid Rule 37(c)(1)’s exclusion sanction by showing that their failure to comply with Rule 26(a)(2)(B) “was substantially justified or is harmless.”
Automotive Engineering Expert Witness
Larry Petersen is an automotive engineer whose litigation support work, in a primary engineering analysis and expert testimony role, includes detailed design, failure analysis and accident reconstructions including automotive components including engine, transmission, driveline, brake and suspension and engine/transmission control components.
The Oetjens, seemingly pointing to Rule 37(c)(1)’s exception for “substantially justified” nondisclosure, responded that they cannot yet produce an expert report for Petersen for two reasons. First, they cited “outstanding discovery requests,” asserting that Petersen cannot offer an expert opinion on whether Covidien’s stapler fired without stapling or failed to fire at all until the Oetjens receive “an exemplar stapler to inspect” and depose a Rule 30(b)(6) Covidien representative with “a working knowledge of the mechanics of the stapler,” specifically whether the stapler can cut without stapling.
Further, said Covidien, the Oetjens should have timely submitted an expert report for Petersen, “then supplemented it if necessary—or sought additional time.”
It should be noted that Petersen’s testimony is contingent upon whether Covidien raises a user error argument. They say they identified Petersen as an expert witness “for the sole purpose of having an independent engineer available . . . in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler.” If Covidien argues user error, then the Oetjens will provide an expert report for Petersen. Otherwise, the Oetjens may not need Petersen’s expert testimony at all, or they may use Petersen only “as a potential engineering rebuttal witness” such that “there would be no need for an expert report.”
Because the parties stipulated to stay Covidien’s expert disclosure deadline pending the resolution of its motions, it should be noted that Covidien “will not be prejudiced by allowing Petersen to submit his expert report, if necessary, once the outstanding discovery has been provided.”
On this key point, therefore, the Court found that the Oetjens’ failure to timely provide an expert report for Petersen is ultimately harmless.
Held
The Court denied without prejudice the Defendants’ motion to strike Larry Petersen’s testimony. It provided Covidien with the opportunity to depose Petersen and retain a rebuttal expert witness prior to trial. This will eliminate any prejudice to Covidien and aid in efficiency should Petersen’s expert report prove unnecessary.
Key Takeaway:
While Covidien made strong arguments that the Oetjens should have proceeded differently with respect to Petersen’s expert disclosures, the Court concluded that the Oetjens’ missteps were not ultimately prejudicial, so exclusion is not necessary on that ground.
Petersen was identified as an expert witness for the sole purpose of having an independent engineer available in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler. Considering Petersen’s testimony was contingent upon whether Covidien raised a user error argument, it was likely that Oetjens may not need Petersen’s expert testimony at all.
H5R owns a single-family home (the “Property”) in Dallas, Texas, for which Scottsdale Insurance issued an insurance policy covering certain causes of loss. In February 2021, water allegedly entered the Property through or near the roof. H5R “immediately notified” Scottsdale Insurance and filed a claim for this incident. More than one year after the claim was filed, Scottsdale Insurance sent H5R a letter denying the claim dated June 17, 2022.
H5R contended the Property was damaged by hail during the insurance policy period – a covered loss event. But Scottsdale Insurance denied that a hail event during the policy period caused the alleged damage.
H5R and Scottsdale Insurance designated experts to opine regarding the alleged damage under Federal Rule of Civil Procedure 26(a)(2). H5R designated Terry Moore, a purported construction expert, and included Moore’s report regarding the extent of damage to the Property and cost of repair.
Scottsdale Insurance filed a motion to strike Moore’s opinions and testimony because his designation and report failed to comply with Federal Rule of Civil Procedure 26.
Real Estate Development Expert Witness
Terry Moore is the founder and president of the Garrett Moore Company, a commercial real estate development firm that, since 1977, has developed over 22,000,000 square feet of property. This portfolio includes, but is not limited to, retail and office spaces, 45,000 apartment units, Caribbean resorts, assisted living facilities, and senior resort-style living communities.
With over 45 years of experience in the real estate market, Terry Moore has a proven track record of success in the industry. He is a 1977 graduate of the University of Oklahoma, holding advanced degrees in Architecture.
Scottsdale Insurance asserted that Moore’s expert disclosure “omits key information required under Rule 26(a)(2)(B) – specifically ‘a complete statement of all opinions the witness will express and the basis and reasons for them’ and ‘the facts or data considered by the witness in forming them.’” And it contended that, in Moore’s deposition, he opined on issues that he was not designated for or provided a report on – particularly those involving causation (i.e., that hail caused the alleged damage to H5R’s Property).
Moore testified that the report contained a complete statement of all his opinions and underlying facts or data. And he confirmed that his report did not contain a causation opinion.
In response, H5R asserted that Moore was properly designated to provide his opinion regarding the Property’s repair costs. And it argued that “[t]here is no requirement that Moore’s report provide opinions regarding cause or date of damage, as these topics were not part of his designation,” and that, when asked about these issues during the deposition by Defendant’s counsel, he “simply answered the questions.”
But, in its summary judgment response, the Court found that H5R relied on Moore’s deposition testimony regarding the causation issue – more than once despite conceding that the topic “was not part of his designation.”
H5R has not provided a justification for its noncompliance with Rule 26(a)(2), and, so, the Court turns to whether its failure to disclose was harmless by evaluating certain factors.
How Important the Evidence is
The first factor of the harmlessness analysis – how important the evidence is – weighs in favor of exclusion.
According to the Court, H5R’s argument that Scottsdale Insurance “ignores its own evidence” demonstrating that “the damage was caused by hail” indicates that Moore’s testimony is duplicative or of minimal importance.
Prejudice to the Party Opposing the Admission of the Evidence
The second factor – prejudice to the party opposing the admission of the evidence – also favors exclusion.
H5R initially alleged that the Property damage was caused by a snow and ice event or a broken pipe. But H5R relied on Moore’s deposition testimony in its summary judgment response for the proposition that hail caused the damage, despite conceding that the topic “was not part of his designation” or in his expert report.
And, so, the Court found that Scottsdale Insurance has been prejudiced because H5R failed to provide Scottsdale Insurance’s counsel with notice regarding the scope of his expert testimony and “now faces a newly alleged cause of loss and new opinions about the alleged damage deep into the case, with discovery now closed.”
Possibility that a Continuance Could Cure any Prejudice
The third factor – the possibility that a continuance could cure any prejudice – weighs against exclusion because the Court vacated the trial setting and all pretrial deadlines in May 2024.
The Explanation for the Party’s Failure to Disclose
The fourth factor – the explanation for the party’s failure to disclose – favors exclusion.
H5R asserted that Moore was not required to provide opinions regarding causation in his report since he was not designated as an expert on that topic and, when asked about it during the deposition by Scottsdale Insurance’s counsel, he “simply answered the questions.”
But, in its summary judgment response, H5R attempted to present Moore as an expert on causation, which is an issue central to the resolution of this case. And, so, the Court is not persuaded by H5R’s explanation.
Held
Considering these four factors holistically, the Court concluded that H5R’s noncompliance with Rule 26(a)(2) is not harmless and that Moore’s testimony should be excluded under Rule 37(c)(1).
Key Takeaway:
H5R has not provided a justification for its noncompliance with Rule 26(a)(2). Because Moore “provided several undisclosed opinions in his deposition” about issues that he was not designated to opine on, including the source of alleged damage, the Court concluded that H5R’s noncompliance with Rule 26(a)(2) is not harmless.
On October 25, 2024, Petitioner Prasanna Sankaranarayanan filed a petition seeking the return of the parties’ minor son, S.A., to his habitual residence. The petition claims that Respondent Dhivya Sashidhar unlawfully took S.A. from Singapore to the United States on October 14, 2024. On November 1, 2024, Sashidhar was served with the summons and complaint in Redmond, Washington.
Hague Convention cases are typically expedited, with a six-week resolution period recommended. In this case, the Court held a telephone conference with the parties on November 22, 2024, and scheduled an evidentiary hearing for January 6, 2025.
After the conference, the Court issued a scheduling order that outlined deadlines for filings and disclosures, as proposed by the parties. However, the parties later disagreed on whether the deadlines applied to both sides.
On December 27, 2024, Sashidhar filed a motion to exclude Petitioner’s psychology expert witness, Peter Favaro. Sashidhar argued that Sankaranarayanan had violated the scheduling order by disclosing the expert witness after the deadlines for such disclosures had passed.
Psychology Expert Witness
Peter Favaro is a psychologist licensed in the state of New York and has been in private practice since 1986. His area of expertise is psychology within court-related matters. Since 1986, he has been privately hired or court-appointed to thousands of cases to provide evaluation and expert opinion in matters involving domestic violence, custody disputes, and child abuse. He also offers court-related services such as supervised visitation, family mediation, anger management, family therapy, civility training, and parenting coordination. Additionally, he has been appointed or hired on cases involving the 1980 Hague Child Abduction Convention.
In its motion, the Respondent sought to exclude the testimony and report of Peter Favaro, Petitioner’s psychology expert witness.
On December 10, 2024, Petitioner’s counsel emailed Respondent’s counsel to reveal that they had retained Favaro as a rebuttal expert. However, Petitioner had not disclosed Favaro in their initial filings. Following this, Respondent arranged for the child to meet with Favaro on three consecutive days for an evaluation.
Respondent argued that Favaro should be considered an affirmative expert, not just a rebuttal expert, as Petitioner claimed. Respondent pointed to several factors to support this argument:
The report’s title did not suggest it was a rebuttal report
The content included definitive conclusions, and
The opinions went beyond simply addressing the Respondent’s expert reports.
In fact, according to the Respondent, Favaro’s report claimed that the Respondent may have been exerting undue influence over the child and potentially mistreating the child.
Additionally, Respondent asserted that the disclosure of Favaro’s report on December 23, 2024, was untimely and caused significant prejudice. The late disclosure left Respondent with insufficient time to retain a rebuttal expert to challenge Favaro’s conclusions. Furthermore, Respondent was unable to depose Favaro before the Court’s deposition deadline, further hindering its ability to respond effectively.
2. Petitioner’s Position
Petitioner argued that they complied with the Court’s scheduling order, as the dates and language were meant for Respondent to disclose experts and serve expert reports. Petitioner opposed the motion to exclude, stating that the order did not set specific dates for Petitioner’s affirmative or rebuttal experts. Therefore, Petitioner claimed they had not missed any deadlines.
Petitioner further maintained that Favaro was solely a rebuttal expert, a child forensic psychologist retained to address Respondent’s affirmative defenses of grave risk and mature child. Petitioner emphasized that Favaro’s report was properly disclosed on December 23, 2024.
B. Analysis
1. The Scheduling Order
The Court needed to determine whether the expert disclosure deadline applied to both parties. The parties interpreted the scheduling order differently. The order required Respondent to serve expert disclosures by December 2, 2024, and initial expert reports by December 9, 2024. However, the order did not specify deadlines for Petitioner’s affirmative expert disclosures. It only mentioned that both parties were to serve rebuttal expert reports by December 20, 2024.
The minute entry accompanying the order outlined the schedule, including expert disclosures, initial reports, and rebuttal reports, but it did not address the timing for Petitioner’s disclosures. The entry and the order were silent about rebuttal expert disclosure.
Petitioner’s attempt to distinguish between the scheduling order’s text and the minute entry was viewed as an attempt at gamesmanship. The Court found the minute entry to be an integral part of the order. If Petitioner found any confusion, they could have sought clarification instead of using the discrepancy for tactical advantage. The Court found the order’s deadlines to be clear and applicable to both parties.
Petitioner’s claim that they did not know if experts were needed after December 2, 2024, was deemed disingenuous. During the November telephone conference, Petitioner’s counsel repeatedly discussed experts. Respondent’s counsel had also indicated that an expert had been retained and was ready for disclosure.
The Court concluded that the expert disclosure deadline applied equally to both parties. Petitioner was aware of Respondent’s expert well before the disclosure deadline, as discussed in the telephone conference. The Court then considered the disclosures for both affirmative and rebuttal experts.
1. Affirmative Expert Testimony
Although Petitioner argued that all of the testimony was purely rebuttal, the Court was not fully convinced. The 20-page expert report was detailed and appeared to offer opinions and conclusions beyond those necessary for rebutting the affirmative defenses. For instance, Favaro’s opinion that Respondent’s “parental gatekeeping” amounted to maltreatment of the child did not address the grave risk or mature child defenses. As a result, the Court determined that the scope of Favaro’s report went beyond rebuttal testimony. Therefore, Petitioner had untimely disclosed Favaro as an affirmative expert witness.
2. Rebuttal Expert Testimony
Since the scheduling order did not specify deadlines for disclosing rebuttal experts, the Court considered the timeframes typically outlined in the Federal Rules of Civil Procedure. According to these Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a rebuttal expert may be disclosed within 30 days after the other party’s expert disclosure, provided the evidence is intended solely to contradict or rebut the other party’s evidence on the same subject. However, this guideline offered limited guidance in this case due to the tight deadlines in expedited Hague Petition cases. Given the silence in the scheduling order and the inapplicability of the Federal Rules, the Court turned to other authorities to resolve the issue.
Persuasive cases from this District and elsewhere suggested that the party with the burden of proof, in this case, the party asserting an affirmative defense, should disclose its expert testimony before the opposing party discloses an expert to rebut it. The Court referenced several cases supporting this approach.
Based on this guidance and the lack of clarity in the scheduling order, the Court concluded that Petitioner’s disclosure of Favaro on December 10, 2024, shortly after Respondent served affirmative expert reports, was appropriate. Therefore, the Court determined that Petitioner had timely disclosed Favaro as a rebuttal expert.
3. Sanctions
Petitioner has failed to demonstrate that disclosure for any affirmative testimony was substantially justified or harmless. To the extent Favaro’s opinions exceed the scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s ability to prepare for the evidentiary hearing. The Court will not infer that the violation is harmless from Respondent not deposing one expert to be definitive that Respondent would not have deposed Favaro if properly disclosed as an affirmative expert witness.
Similarly, in light of the lengthy discussions about experts during the telephone conference, Petitioner cannot reasonably maintain that the knowledge about experts did not arise until December 2, 2024. Therefore, the Court concluded that sanctions are warranted because Petitioner has not shown that the discovery violation was substantially justified or harmless.
The Court observed that Favaro’s testimony is important to resolving this matter on the merits, but the Court still finds that sanctions are warranted in this matter. Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s disclosure merely because [the expert] also has also offered some proper rebuttal [evidence].”
Held
The Court granted in part and denied in part Respondent’s motion to exclude Petitioner’s expert witness Peter Favaro’s testimony.
It excludes any of Favaro’s testimony or portions of the report that exceed the scope of rebuttal testimony for Respondent’s affirmative defense.
The Court directed Petitioner to provide Respondent an articulation of Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm (PST).
Key Takeaway:
Portions of Peter Favaro’s report exceeded the scope of permissible rebuttal testimony and the Court deemed the disclosure of his affirmative expert opinions untimely. While the Court accepted Favaro’s rebuttal testimony, it excluded his opinions on matters unrelated to the grave risk or mature child affirmative defenses—such as allegations of “parental gatekeeping” and maltreatment.
Case Details:
Case caption:
Sankaranarayanan V. Sashidhar
Docket Number:
2:24cv1745
Court:
United States District Court for the Western District of Washington
Plaintiff American Power, LLC (“AMP”) is a trucking-logistics company headquartered in Dayton, Ohio. According to the Complaint, Plaintiff invested in and loaned $450,000 to Defendant Dektrix LLC, a transportation-servicing company headquartered in Utah. The Complaint charges that the investment and loan were fraudulently obtained and ultimately worthless.
Plaintiff sought to impose liability upon Dektrix and various other business entities and individuals for purported violations of federal securities laws and state common law.
Dektrix sought to exclude Randall S. Kuvin, CPA, ABV, CFF as an expert. Dektrix presented two arguments in their motion to exclude the testimony of Kuvin: (A) AMP failed to comply with Fed. R. Civ. P. 26; and (B) Fed. R. Evid. 702 and Daubert bars the expert’s testimony.
Accounting Expert Witness
Randall Kuvin has been with Flagel Huber Flagel almost 40 years and served as Managing Partner until 2023. Though he works across all aspects of business, Kuvin brings significant depth of experience and expertise in the areas of Business Valuation, Litigation Support, and accounting specific to the Real Estate industry.
Examples of his expertise include determining values of businesses for the purposes of asset division in divorce or other disputes as well as providing forensic analysis to determine income for purposes of spousal support or contract/damage matters.
To begin with, Dektrix claimed that AMP failed to comply with Rule 26 by not stating the opinions of each author of the damages study; not disclosing the compensation of the expert; failing to supplement the expert’s list of testimony; and not supplementing the expert report.
In response, AMP disclosed Kuvin’s compensation to opposing counsel, supplemented the expert’s list of testimony, and shared an updated expert report that included a higher damages number (when actual numbers were used) than the original report. AMP provided Dektrix with this supplemental information on November 20, 2024.
Courts within the Sixth Circuit weigh five factors to determine whether a party’s noncompliant disclosure was substantially justified or harmless: (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 nondisclosing party’s explanation for its failure to disclose the evidence.
The surprise to the party against whom the evidence would be offered
Basically, Dektrix claimed it would be surprised by which expert will testify, Kuvin or Terry L. Yoho, or both. Trial is about a month away, and testimony from Kuvin in AMP’s case-in-chief may necessitate some adjustment’s to Dektrix’s trial strategy, but Dektrix should not have been surprised that Kuvin would testify as an expert because AMP provided the 2022 damages study in February 2022—well before the original disclosure deadline—and Dektrix could have deposed Kuvin, which it did not.
Therefore, the Court held that Dektrix’s attempt to recast this as a situation where AMP never provided an expert report, or that it had no idea who would testify, is misguided. Instead, Dektrix should not have been surprised Kuvin would provide expert testimony on his 2022 damages study nor does Dektrix cite any case law suggesting surprise to a party occurred in analogous circumstances.
The ability of the party to cure the surprise and the disruption on the trial
Dektrix emphasized that AMP had not provided compensation, an updated curriculum vitae (“CV”), and supplemental information in support of the 2022 Damages Report.
The Court held that this emphasis is misplaced because AMP cured any surprise about Kuvin’s compensation and CV on November 20, 2024 (almost two months before trial), which gives Dektrix sufficient time to prepare cross-examination on these two issues, if it so chooses.
Regarding the supplemented report on the damages AMP allegedly incurred after December 31, 2021, the Court agreed that AMP should have supplemented the 2022 damages study sooner, and if AMP had, it might have been able to recover higher damages. As such, AMP may use the 2022 damages study in connection with Kuvin’s expert testimony but may not use the supplemental damages information AMP provided on November 20, 2024.
The importance of the evidence
As Dektrix even acknowledges, “[i]n a contract dispute where speculative lost profits are sought, expert testimony is helpful to aid the factfinder.” Moreover, the Court reiterates that the 2022 damages report was not tardy. As such, and given the revealing damages information it contains, Kuvin’s expert testimony on his 2022 damages study constitutes important evidence.
The nondisclosing party’s explanation for its failure to disclose the evidence
AMP acknowledges that it did not supplement its 2022 damages study, provide Kuvin’s compensation, or update Kuvin’s CV before the discovery deadline. Basically, it did not offer a compelling explanation for its failure to comply with the Court’s discovery deadlines. AMP did acknowledge it has cured all three deficiencies two months before trial.
Absent a compelling justification, the Court held that AMP’s failure to comply with the discover deadline weighs in favor of excluding Kuvin’s testimony.
Although the fifth factor favors exclusion, the Court concluded that it does not overcome the other factors.
B. Federal Rule of Evidence 702 and Daubert
Dektrix claimed that the expert’s testimony is not based on sufficient facts or data; the testimony is the not the product of reliable principles and methods; and the expert’s testimony does not reflect a reliable application of the principles and methods.
However, the Court found that Kuvin’s testimony is sufficiently reliable and relevant to the issue of damages to survive Dektrix’s motion to exclude. Also, it appears that Kuvin’s testimony includes independent analysis that would be helpful to the trier of fact in understanding the damages that AMP asserts. Additionally, Dektrix’s arguments regarding the reliability of Kuvin’s testimony relate more to the weight and credibility that the trier of fact will give to Kuvin’s testimony rather than the reliability of his methodology.
Held
The Court denied Dektrix motion to exclude the testimony of Randall S. Kuvin.
Key Takeaways:
First, expert testimony on lost profit damages is admissible if it is helpful to the trier of fact in understanding a damages claim. In a contract dispute where speculative lost profits are sought, expert testimony is helpful to aid the factfinder.
Second, AMP’s late supplement was substantially justified or harmless, and Kuvin’s expert testimony was limited to his 2022 damages study rather than the more recently-supplemented report.
