United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. United States District Court Judge.
The RV Factory, LLC, filed a motion to strike the
supplemental report of Dennis Bailey, an expert witness for
the plaintiffs, arguing that the supplemental report presents
new information and was untimely filed. Plaintiffs Michele
and Dan Harkins and Getaway Crew, LLC, contend that Mr.
Bailey’s expert report was timely supplemented and is
properly disclosed. For the following reasons, the court
denies The RV Factory’s motion.
Mrs. Harkins brought this case against The RV Factory on
breach of warranty and breach of contract claims, alleging
that The RV Factory sold them a defective RV. Reports from
retained experts filed under Rule 26(a)(2) were due from Mr.
and Mrs. Harkins by January 14, 2019, reports from The RV
Factory were due by February 14, and the discovery deadline
was May 1. [Doc. No. 13]. The court directed the parties to
exchange contentions and witness and exhibit lists pursuant
to Federal Rule of Civil Procedure 26(a)(3) by February 17,
2020. [Doc. No. 15].
January 3, 2019, Mr. Bailey investigated Mr. and Mrs.
Harkins’s vehicle, a 2017 RV Factory Weekend Warrior.
Mr. and Mrs. Harkins served The RV Factory with a timely
expert report from Mr. Bailey nine days later. Mr. Bailey
said that after looking at the plaintiffs’ RV, he
investigated another RV of the same make and model for a
different case and did more research on a defect that he
noticed on both vehicles. Mr. Bailey researched and spoke to
RV dealers, and he concluded the defect he found on the
Harkins RV could cause a fatal accident. He submitted a
supplemental report to Mr. and Mrs. Harkins reflecting this
opinion on May 2, and Mr. and Mrs. Harkins served the
supplement to The RV Factory the same day. Four days later,
The RV Factory deposed its own expert, who offered rebuttal
testimony about the supplement at his deposition. The RV
Factory also questioned Mr. Bailey about the supplement at
his June 24 deposition.
retained expert witness must produce a written report
containing “a complete statement of all opinions the
witnesses will express and the basis and reasons for
them.” Fed.R.Civ.P. 26(a)(2)(B)(i). An expert who has
made a disclosure under Rule 26(a) must supplement or correct
his disclosure “in a timely manner if the party learns
that in some material respect the disclosure or response is
incomplete or incorrect.” Fed.R.Civ.P. 26(e)(1)(A).
Rule 26(e) “does not give the producing party a license
to disregard discovery deadlines and to offer new opinions
under the guise of the ‘supplement’ label.”
Allgood v. Gen. Motors Corp., No.
1:02-CV-1077-DFH-TAB, 2007 WL 647496, at *3 (S.D. Ind. Feb.
2, 2007) (citing Solaia Technology LLC v. ArvinMeritor,
Inc., 361 F.Supp.2d 797, 806 (N.D. Ill. 2005)). The rule
allows a party to supplement or correct information, but it
“does not give license to sandbag one's opponent
with claims and issues which should have been included in the
expert witness’ report[.]” Allgood v. Gen.
Motors Corp., No. 1:02-CV-1077-DFH-TAB, 2007 WL 647496,
at *3 (S.D. Ind. Feb. 2, 2007) (quoting Beller v. United
States, 221 F.R.D. 689, 695 (D.N.M. 2003)). A
supplemental report must be based on information that has
become available since the expert filed his first report, not
just on information that is new to the expert. Schmucker
v. Johnson Controls, Inc., No. 3:14-CV-1593-JD, 2019 WL
718553, at *8 (N.D. Ind. Feb. 19, 2019) (distinguishing newly
collected information from new developments). Additions or
changes to a Rule 26(a)(2)(B) expert witness report must be
disclosed by the Rule 26(a)(3) pretrial disclosures deadline.
Fed.R.Civ.P. 26(e)(2). Unless it was substantially justified
or harmless, a party’s failure to comply with Rule 26
results in exclusion of the witness or information.
Fed.R.Civ.p. 37(c)(1). Courts consider four factors in
exercising discretion to admit or exclude: “(1) the
prejudice or surprise to the party against whom the evidence
is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption to the trial; and
(4) the bad faith or willfulness involved in not disclosing
the evidence at an earlier date.” David v.
Caterpillar, Inc., 51');">324 F.3d 851, 857 (7th Cir. 2003).
Factory argues that Mr. Bailey’s supplemental report
offers new conclusions as to the safety of the Harkins RV and
so is inadmissible under Rule 26. Mr. Bailey noted in his
first report that the RV had structural damage below the
bedroom slide out on the front driver’s side
“causing cracking in phylon” and that structural
damage on the driver’s side front was “causing
the phylon to bulge.” [Doc. No. 18-p. 3');">2 p. 3]. He also
noted that the bedroom slide couldn’t extend or
retract. Id. At the end of his report, he concluded:
“Did the RV’s defects substantially impair the
use and/or value and/or safety of the RV? They did.”
[Doc. No. 18-5');">2 p. 45]. In his second report, Mr.
Bailey’s discussion of the slide out and the RV’s
safety is more detailed. He writes:
It is also my opinion that after numerous attempts to repair
the structural failure in the side-wall at the slide out
front bottom corner, the structural fracture will increase
during normal operation and therefore create a situation that
is potentially dangerous to both the owner/driver/occupants
and the general public. Therefore, due to this safety defect
this Rv [sic] should not be used on public highways.
[Doc. No. 18-3 p. 2]. The RV Factory contends that because
Mr. Bailey’s first report didn’t discuss how
structural damage might impact the vehicle over time, this
passage in the supplemental report is a new conclusion that
can’t be submitted under Rule 26. The Harkins argue
that the disclosure was substantially justified because the
second report’s damage discussion is based on new
report is based on new information in the sense that Mr.
Bailey didn’t know how the defect on the Mr. and Mrs.
Harkins’s RV might change or worsen over time until he
saw another Weekend Warrior for another case. But the
resources that helped Mr. Bailey reach that conclusion
weren’t a new development. The research methods he used
and the information he uncovered after inspecting the second
Weekend Warrior were all available when Mr. Bailey wrote his
first report, so the supplement isn’t based on new
information under Rule 26.
Factory argues that the supplement should be excluded under
Rule 37 because it was unjustified and harmful. The defendant
contends that it will incur additional discovery costs if the
report isn’t stricken and that the court’s
discovery schedule will be undermined.
on the court’s analysis of the four factors in
David v. Caterpillar, the report was substantially
justified and harmless. Under the first two factors, The RV
Factory was not unduly prejudiced by the supplemental report
and had opportunities to cure any prejudice that might have
occurred. Mr. and Mrs. Harkins delivered the supplemental
report four days before the deposition of The RV
Factory’s expert, but that deposition was conducted as
scheduled and the expert was still able to offer rebuttal
testimony. The RV Factory was able to question Mr. Bailey
about the report at his own deposition. If The RV Factory
felt it needed more time for discovery after receiving Mr.
Bailey’s supplement, it could have filed a motion to
extend the discovery deadline for good cause.
supplement, filed in May well before the Rule 26(a)(3)
pretrial disclosures deadline, isn’t likely to disrupt
the trial based on the case’s current deadlines. The
proximity of the dispositive motion deadline might have been
an issue for The RV Factory, but the parties have agreed to
seek an extension of that deadline. [Doc. No. 26].
the report wasn’t filed so late that it should be
considered bad faith or willfulness on the plaintiffs’
part. Mr. and Mrs. Harkins didn’t file the supplement
to bolster their position on a dispositive motion; none have
been filed. Mr. Bailey investigated the second Weekend
Warrior because a lawyer retained him in another case, not
because Mr. and Mrs. Harkins requested supplemental research
for an extra report. Mr. Bailey supplemented his report after
concluding that the defect he observed on both vehicles is
dangerous, testifying in his deposition that “someone
could get killed.” [Doc. No. 23-5, p. 3].
reasons stated above, the court DENIES the defendant’s
motion to strike the plaintiff’s ...