United States District Court, N.D. California
ORDER RE: MOTIONS IN LIMINE AT ECF 106, 107, 110 Re: ECF No. 106, 107, 110
JON S. TIGAR, District Judge.
The Court heard argument concerning the parties' motions in limine on June 5, 2015. The Court issued rulings from the bench regarding some of the motions, ECF No. 145, and took others under submission. Id . The Court now issues further orders regarding certain of the motions, as set forth below.
Motion in Limine at ECF No. 106: Regarding Expert Katherine Sweeney's Supplemental Report
By this motion, defendant Golden Gate Bridge, Highway & Transportation District ("District") seeks to exclude a supplemental report filed by plaintiff David Rhoades' expert witness, Captain Katherine Sweeney. ECF No. 106. The deadline for expert reports and disclosures was January 13, 2015. Rhoades disclosed Captain Sweeney as a testifying expert, and provided a report from her, on or about that date. The District took Captain Sweeney's deposition on March 24, 2015.
The District's expert witness Captain Eugene Hickey prepared a report, disclosed on January 13, 2015, which relied in part on Automated Information System ("AIS") data, including AIS data not previously produced to Plaintiffs by the District. ECF 138-2. Although Hickey did not include the AIS data in the section of his report titled "Materials Considered, " id. at 24-25, the AIS data is referenced at several points throughout the report. See, e.g., id. at 2 n. 2, 7, 20 n. 10.
On April 14, 2015, counsel for the District notified Plaintiffs that Captain Hickey had in fact relied on AIS information in preparing the report. See ECF No. 138-3. Following this disclosure, counsel for Plaintiff Holzhauer obtained additional AIS data from the Marine Exchange prior to Captain Hickey's deposition on April 27, 2015. Holzhauer's counsel used the AIS data to cross-examine Captain Hickey regarding his report's conclusion that the ferry had maintained course and speed. ECF No. 138 at 4.
On May 22, 2015, Rhoades disclosed a supplemental expert report prepared by Captain Sweeney. The report included an analysis of the AIS data that she had not relied on in her initial report, including the data relied on by Captain Hickey in the preparation of his report. Although the District had provided some of the AIS data to Plaintiffs in May 2014, see ECF No. 150, Captain Sweeney did not rely on that data in her initial expert report submitted on January 13, 2015. ECF No. 138-1.
On May 26, 2015, the District moved to exclude the supplemental report as untimely. As the party sponsoring a late-filed expert report, the burden is on Rhoades to prove that the late disclosure of the facts or opinions in Sweeney's report was either substantially justified or harmless under Fed.R.Civ.P. 37(c)(1). Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008).
Rhoades makes two responses to the District's motion. First, he argues that Captain Sweeney's supplemental report was not actually untimely, because Rule 26(e)(1) provides that a party that has made its expert disclosures under Rule 26(a) "must supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the addition or corrective information has not otherwise been made known to the other parties during the discovery process..." See Medtronic Vascular, Inc. v. Abbott Cardiocvascular Systems, Inc., 2008 WL 4601038 at *1 (N.D. Cal. 2008). Because Captain Sweeney's initial report was based on "information supporting the conclusion that the powerboat was overtaking the ferry, " Rhoades contends that the initial report was rendered "incomplete or incorrect" under Rule 26(e)(1) once Captain Sweeney consulted the AIS report. ECF No. 138 at 5.
The Court rejects this reasoning, which suggests that any litigant could get an expert witness "do over" simply by claiming that her expert's original report was incomplete or incorrect. Such is not the purpose of Rule 26(e)(1). "Case law interpreting the rule reflects that a supplemental disclosure must be exactly that - i.e., a supplement, " and "[a] party may not rely on Rule 26(e)(1) as a way to remedy a deficient expert report or as a means of getting in, in effect, a brand new report." Medtronic Vascular, Inc. v. Abbott Cardiovascular Sys., Inc., No. C-06-1066PJH(EMC), 2008 WL 4601038, at *1 (N.D. Cal. Oct. 15, 2008). Because Captain Sweeney did not rely on the AIS data at all in producing her initial report - even though her counsel had AIS data in their possession - Rhoades cannot now introduce a new report relying heavily on that data. Such a report is not truly "supplemental, " but rather an entirely new report, resembling a rebuttal report to the report of Captain Hickey.
Rhoades next asserts that the late filing of the supplemental report was nonetheless "substantially justified" in light of the District's incomplete Rule 26 disclosures in relation to the expert report of its expert Captain Hickey. Captain Hickey's report was submitted prior to January 13, 2015, but Rhoades alleges the District did not notify Plaintiffs of Captain Hickey's reliance on the AIS data until "three months after disclosing its experts and providing reports." ECF No. 138 at 2.
The difficulty with this argument is that the District's non-compliance with Rule 26 in connection with Captain Hickey's report, if any, could not have affected the content of Captain Sweeney's report, since both reports were disclosed on the same day. Even if Captain Hickey had stated that he relied on AIS data in his initial report, Captain Sweeney would not have had the opportunity to review Captain Hickey's report before submitting her own. And Rhoades has not shown that the District was required to disclose the AIS data at any time prior to the preparation of Captain Sweeney's report in response to a particular discovery request, or as a matter of Rule 26 disclosure obligation. Therefore, Rhoades has not shown any conduct, or lack of action, by the District that could have affected Captain Sweeney's analysis or justified the preparation of a late supplemental report.
The Court will grant the District's motion, and strike Captain Sweeney's ...