04/27/2023 - Expert Report 'Struck' For Untimely Submission

A recent decision by a federal court in Michigan highlights the importance of adhering to pre-trial deadlines in the discovery process. The case in question, L.V. Nagle & Assoc. Inc. v. Tubular Steel Inc., saw the plaintiff's expert report being struck off the record because it was filed after the court-issued deadline.

The defendants in the case argued that the report was filed too late, and filed a motion to strike it from the record. U.S. District Judge Stephen J. Murphy III agreed with the defendants, stating that the untimeliness was unjustified and would cause harm to the defendants if the report was admitted.

The case background shows that L.V. Nagle & Associates sent Tubular Steel an 11-page report outlining the opinion of a damages expert. The report explained her opinion on the damages Tubular Steel owed L.V. Nagle for the actual and projected sales for a dozen buyers of Tubular Steel’s buyers.

Following the first report, and just five days before the scheduled start of the trial, L.V. Nagle sent Tubular Steel a second “supplemental” expert report outlining a new expert opinion. The calculation of damages in the new 38-page report differed in significant ways.

The second report listed three numbers, while the first report only gave one bottom-line damages number. Additionally, the method used for calculating damages in the second report was different from that used in the first report. The expert reviewed roughly 700 documents for the new report and identified the documents she relied on to form her opinion.

Two days after receiving the second report, Tubular Steel moved to strike it under Federal Rule of Civil Procedure 26. The judge noted that the pretrial conference was held on March 2, 2023, and the parties were directed to submit all Rule 26(a)(3) pretrial disclosures one week before that date.

Thus, “any additions or changes” to the parties’ expert reports were due no later than February 23, 2023. But Plaintiff did not disclose its damages expert’s second report until March 9, 2023. Therefore, under Rule 37(c), the court must exclude the second expert report unless it is (a) harmless, or (b) substantially justified.

To determine if the second report would be harmful, Murphy considered the five factors outlined in Howe v. City of Akron. Four weighed in Tubular Steel’s favor.

The first report was sent by L.V. Nagle in February 2021. The second report, however, was a surprise to Tubular Steel. Plaintiff sent Defendants a substantially new expert report five days before the start of trial, two weeks late, and twenty-five months after sending the first expert report.

the Plaintiff introduced an entirely new piece of evidence on the eve of trial and argued that it would not surprise Defendants because the new report analyzed only sales information and projections that Defendants already had. However, it would be “illogical to say that a new expert report that uses a new formula to calculate damages, is based on a far wider array of documents, and substantially increases the size of the witness’s opinion of Defendants’ liability” would not be surprising.

The evidence introduced in the second report likely would disrupt trial. If the Plaintiff had timely produced the second expert report, Defendants might have made different strategy choices. Plaintiff has simply not proven that the trial will not be disrupted by the untimely production of the report.

Finally, L.V. Nagle offered no explanation why it disclosed the second report so close to trial. “And because ‘[t]he burden is on the potentially sanctioned party to prove harmlessness,’ the Court cannot find that Plaintiff had a good explanation for its late disclosure,” Murphy