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Rimando Cueto v. Overseas Shipholding Group

January 4, 2012

RIMANDO CUETO,
PLAINTIFF,
v.
OVERSEAS SHIPHOLDING GROUP, INC.,
OSG SHIP MANAGEMENT, INC.,
ASC LEASING VI, INC., AND DOES 1-10, INCLUSIVE, IN PERSONAM, AND M/T OVERSEAS BOSTON, HER ENGINES, TACKLE, APPAREL, FURNITURE, AND APPURTENANCES, IN REM,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

ORDER DENYING EX PARTE MOTION FOR LEAVE TO FILE SUPPLEMENTAL EXPERT REPORT [Docket No.16]

INTRODUCTION

In this maritime personal injury action, Plaintiff Rimando Cueto ("Plaintiff') claims that he was injured while employed as a seaman by defendant OSG Ship Management, Inc., ("OSG") aboard an oil tanker owned by defendant ASC Leasing VI, Inc., ("ASC", collectively "Defendants"). On December 30, 2011, Defendants filed an Ex Parte Motion for Leave to File Supplemental Expert Report of Edward L. Bennett [Docket No. 16.] Defendants seek permission to supplement the expert report of Edward Bennet, a vocational rehabilitation expert. On January 3, 3012, Plaintiff filed an Affidavit in Opposition to the Ex Parte Motion. [Docket No. 18.] The supplemental report seeks to add a new position, Dynamic Positioning Officer, for which Defendants claim Plaintiff is qualified and a new theory as to Plaintiff's expected work life expectancy. For the following reasons, the Ex Parte Motion is Denied.

DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 26 governs the disclosure of expert testimony. Rule 26(a)(2) provides that a party must disclose to other parties "the identity of all expert witnesses who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Rule 26 Unless as otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-- prepared and signed by the witness . . . . The report must contain a complete statement of all opinions the witness will express and the basis and reasons for them.

Fed. R. Civ. P. 26(a)(2)(B). With respect to the timing of expert disclosures, Rule 26(a)(2)(c) provides: "A party must make these disclosures at the times and in the sequence that the court orders." Rule 26(e)(2) governs the supplementation of expert reports. It provides, in pertinent part:

For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.

Fed. R. Civ. P. 26(e)(2).

Parties who run afoul of Rule 26 may face sanctions as specified in Federal Rule of Civil Procedure 37, which provides in relevant part:

If 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.

Fed. R. Civ. P. 37(c)(1). The exclusion sanction is "self-executing" and "automatic." Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (referencing the Advisory Committee's Notes to Rule 37(c)(1) (1993 Amendments)). However, "[t]wo express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the party can prove that its failure to disclose the required information is substantially justified or harmless." Id. at 106-07 ("Implicit in Rule37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.") *fn1

B. The Scheduling Order

On November 10, 2010, the Court conducted a Case Management Conference and issued a Scheduling Order. The relevant ...


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