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Federal Deposit Insurance v. Melanie anderson An Individual

August 24, 2012

FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC BANK, F.S.B.,
PLAINTIFF,
v.
MELANIE ANDERSON AN INDIVIDUAL, MELANIE ANDERSON DBA COTTAGE CREEK APPRAISALS,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY OF IGNACIO GOMEZ

Defendant moves to exclude the expert witness testimony of Ignacio Gomez under Federal Rules of Civil Procedure ("Rules") 26 and 37, arguing Plaintiff's disclosure of Mr. Gomez as an expert witness was untimely and deficient. (Def.'s Mem. of P.&A. in Supp. of Mot. to Exclude ("Mot.") 5:13-15.) Plaintiff opposes the motion, arguing Mr. Gomez was timely disclosed as a rebuttal expert, and "there is no harm to defendant for the vagueness contained in Mr. Gomez's disclosure." (Pl.'s Opp'n ("Opp'n") 1:5-8, 1:17-18.)

I. BACKGROUND

This litigation involves Defendant's appraisal of real property for mortgage lending purposes. (Compl. ¶ 7.) Plaintiff alleges Defendant negligently overvalued certain real property, and the negligent appraisal resulted in damages to Plaintiff. Id. at ¶ 12.

A Status (Pretrial Scheduling) Order filed August 3, 2011, established a number of scheduling deadlines for this action. (ECF No. 12.) The parties have sought multiple extensions of a number of these deadlines. (ECF Nos. 14, 19, 27, 34, 37.) The existing deadlines for the disclosure of expert witnesses are as follows: initial expert disclosure was due on or before April 13, 2012, and contradictory and/or rebuttal expert disclosure was due on or before May 11, 2012. (ECF No. 35.)

The parties disclosed experts on April 13, 2012. (Decl. of Susan D. Condon in Supp. of Pl.'s Opp'n ("Condon Decl.") ¶ 2.) Plaintiff disclosed an appraisal expert, and Defendant disclosed an appraisal expert and an underwriting expert. Id. On April 23, 2012, Plaintiff's office sent a letter to opposing counsel, which states as follows:

Pursuant to Federal Rule of Civil Procedure (a)(2), [Plaintiff] amends is [sic] expert disclosure of April 13, 2012, to disclose both Ignacio Gomez and Lee Batholomew as expert witnesses it may present at trial. Mr. Batholomew's expert report under Rule 26(a)(2)(B) was provided with the original April 13, 2012 disclosure.

Id. ¶ 3, Ex. 1. Plaintiff's counsel declares "[i]t was [her] intent . . . to submit Mr. Gomez strictly as a party rebuttal expert to [Defendant's underwriting expert]." Id. ¶ 3.

On July 10, 2012, Defendant's counsel emailed Plaintiff's counsel concerning the April 23, 2012 letter. (Decl. of Jason Yang in Supp. of Def.'s Mot. ("Yang Decl.") ¶ 2, Ex. A.) Defendant's counsel states in the July 10, 2012 email, in relevant part, as follows:

[Y]ou have not disclosed whether Gomez is an expert witness pursuant to FRCP 26(a)(2)(B) or FRCP(a)(2)(C). Regardless, your disclosure of Gomez as an expert witness was untimely. . . .

Secondly, you have provided no information with respect to what Gomez' expert testimony will be in regard to. . . .

Consequently, our view . . . is that he should be precluded from testifying from trial as an expert witness.

Id., Ex. A.

Plaintiff's counsel avers that prior to receiving the July 10, 2012 email, she and Defense counsel coordinated the expert deposition schedule, and scheduled Mr. Gomez' expert deposition for July 25, 2012. (Condon Decl. ΒΆ 3.) On July 23, 2012, ...


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