United States District Court, S.D. Florida
HERBERT POTISH, as Personal Representative of the Estate of LENA POTISH, deceased Plaintiff,
R.J. REYNOLDS TOBACCO COMPANY, Individually and as successor by Merger to Brown & Williamson Tobacco Corporation, a North Carolina Corporation, Defendants.
ORDER GRANTING DEFENDANT'S EXPEDITED MOTION TO
STRIKE PLAINTIFF'S PURPORTED "UPDATED" REPORT
FROM PLAINTIFF'S HISTORIAN EXPERT LOUIS M. KYRIAKOUDES,
PH.D [DE 36]
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court upon Defendant, R.J.
Reynolds Tobacco Company's ("Defendant), Expedited
Motion to Strike Plaintiffs Purported "Updated"
Report from Plaintiffs Historian Expert Louis M. Kyriakoudes,
Ph.D. [DE 36]. This matter was referred to the undersigned by
United States District Judge Kenneth A. Marra upon an Order
referring all discovery to the undersigned for final
disposition. See DE 9. Plaintiff, Herbert Potish
("Plaintiff), filed a Response to the Motion [DE 40] and
Defendant filed a Reply [DE 41]. The Court held a hearing on
the Motion on November 27, 2017. The matter is now ripe for
wrongful death case was initially filed in state court on
April 1, 2015, and arises from the damages allegedly suffered
by Herbert Potish, the surviving spouse and personal
representative of Lena Potish, due to Defendant's acts in
manufacturing and selling tobacco products. [DE 1-2, pgs. 6,
9]. The case was removed to federal court on August 19, 2015.
[DE 1]. On February 14, 2017, this Court entered an Order
Granting Joint Motion for Second Modification of the Order
Setting Trial Date and Discovery Deadlines. [DE 22]. The
Order included a July 27, 2017 deadline for Plaintiff to
serve its expert disclosures and Fed.R.Civ.P. 26(a)(2) expert
reports; a November 24, 2017 deadline to complete all fact
and expert discovery; and a December 5, 2017 deadline to file
substantive pretrial motions. Id. On July 27, 2017,
Plaintiff served his Disclosure of Witnesses Pursuant to
Fed.R.Civ.P. 26(a)(2), which listed and provided a report
authored by Plaintiffs retained historian expert, Louis M.
Kyriakoudes, Ph.D. ("Kyriakoudes"). On this
disclosure, Plaintiff listed Kyriakoudes as an expert who
"will testify on the general subject matter of the
history of cigarettes and the cigarette industry in American
life, " who also "may be called to discuss the
historical issues...as they relate and apply to the
plaintiff-specific situations in historical time and
locales." [DE 25-1, pg. 2-3]. However, the attached
report, dated July 25, 2017, contained no case-specific
opinions relating to the decedent, LenaPotish. [DE36, pg. 3].
September 19, 2017, this Court granted Defendant's Motion
to Compel Plaintiff to Provide Amended Expert Witness
Disclosures, and ordered Plaintiff to serve amended expert
disclosures on or before September 26, 2017. [DE 30, pg. 4].
On September 26, 2017, Plaintiff filed his Amended Expert
Witness Disclosures. [DE 31]. The disclosure once again
listed Kyriakoudes, described his report in exactly the same
manner as described in the July 27, 2017 disclosure, and
attached the same July 25, 2017 report to its amended
disclosures. [DE 31, pg. 2]. Again, the report contained no
case-specific opinions relating specifically to the decedent.
November 13, 2017, Plaintiff served upon Defendant a
supplemental expert report written by Kyriakoudes. The
updated report included 3.5 pages of new text and relied on
over 1, 000 new documents and materials that were not
provided in the July 25, 2017 expert report. The supplemental
report contained new opinions which related specifically to
the Decedent's smoking habits and quitting history, and
to the tobacco industry's marketing efforts and its
impact on the decedent. [DE 36-3, pgs. 7, 9, 64-67].
Kyriakoudes' deposition was set for November 21, 2017,
eight days after the filing of the supplemental report. [DE
36, pg. 6].
filed its Motion to Strike on November 14, 2017, and
requested the Court strike Kyriakoudes' untimely
"updated" report and preclude Kyriakoudes from
offering any new opinions not proffered in the expert report
served on September 26, 2017. [DE 36]. Defendant claims that
the Plaintiff is attempting to unilaterally extend the
Court's mandatory scheduling guidelines by providing an
untimely "updated" expert report containing new
opinions two months after the deadline of expert disclosures.
[DE 36, pg. 6]. Defendant argues that allowing Plaintiff to
supplement Kyriakoudes' report would severely prejudice
Defendant because it would significantly alter its deposition
preparation for Kyriakoudes, and impact its ability to submit
substantive pretrial motions by the December 5, 2017
deadline. Id. It would also force Defendant to
provide the supplemental report to its own experts in order
to rebut the conclusions of Kyriakoudes, even though they
have already been provided to Plaintiff.
Plaintiffs Response, Plaintiff argues that he has a duty to
supplement Kyriakoudes' expert report in light of new
facts and developments of the case. [DE 40, pg. 2]. He also
alleges that the supplemental report was provided in a timely
manner because Kyriakoudes needed a reasonable opportunity to
review the deposition transcripts of the children of the
decedent, which were not taken until September 28 and 29. [DE
40, pg. 4]. Plaintiff argues that he provided the report to
Defendant more than a week before the scheduled deposition of
Kyriakoudes, allowing Defendants sufficient time to prepare.
Additionally, because the deposition was postponed as a
result of this Motion, Defendant will have more than three
weeks of preparation and therefore will not be prejudiced by
the filing of the supplemental report. [DE 40, pg. 5].
Plaintiff also argues that the supplement adds only 3.5 pages
to the report and therefore its impact will not be
prejudicial to Defendant. Id.
Defendant's Reply, Defendant rejects Plaintiffs argument
that Kyriakoudes could not supplement the report until after
the deposition of the decedent's children because the
"updated" expert report never cites to any
material or information that was not available to Kyriakoudes
at the time the report was originally filed. [DE 41, pg. 3].
Defendant adds that Plaintiffs interrogatory answers, served
more than a year ago on August 31, 2016, contain the same the
information which Plaintiff alleges only recently became
available. Id. Defendant also rejects Plaintiffs
argument that he is justified in supplementing the report
with "new facts" obtained in discovery because the
updated report did not actually rely on any new facts and in
fact only bolstered Kyriakoudes' prior opinion. [DE 41,
pg. 4]. Defendant reiterated that the supplemental report
would severely delay and prejudice Defendant and would
"wreak exactly the sort of havoc that Rule 26 was
designed to avoid." [DE 41, Pg- 6].
Rule of Civil Procedure 26(a) and (e) require parties to
disclose all bases of their experts' opinions and
requires an expert to supplement his or her report in a
"in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing." Fed.R.Civ.P.
26(e)(1)(A). Pursuant to Rule 37(c)(1), a district court
clearly has authority to exclude an expert report or strike
an expert's testimony where a party has failed to comply
with Rule 26(a), "unless the failure is substantially
justified or harmless." U.S. v. Marder, 318
F.R.D. 186, 190 (S.D. Fla. 2016) (citing OFS Fitel, LLC
v. Epstein, Becker & Green, P.C., 549 F.3d 1344,
1363 (11th Cir.2008)).
burden of establishing that a failure to disclose or comply
was substantially justified or harmless rests on the
non-disclosing party. Id. (citing Mitchell v.
Ford Motor Co., 318 Fed.App'x 821, 824 (11th Cir.
2009). In the instant case, the non-disclosing party is
Plaintiff. Exclusion may also be appropriate pursuant to Rule
16(b), which authorizes the district court to control and
expedite pretrial discovery through a scheduling order and
which gives the court broad discretion to preserve the
integrity and purpose of the pretrial order, including the
exclusion of evidence as a means of enforcing the pretrial
order. Companhia Energetica Potiguar v. Caterpillar
Inc.No. 14-CV-24277, 2016 WL 3102225, at *5 (S.D.Fla. June 2.
2016) (citing Buxton v. Lil' Drug Store Prods.,
Inc., No. 2:02-CV-178, 2007 WL 2254492, at *7 (S.D.Miss.
Aug. 1, 2007), affd, 294 Fed.Appx. 92 (5th Cir.
2008) (quoting Geiserman v. MacDonald, 893 F.2d 787,
790 (5th Cir. 1990))).
have broad discretion to exclude untimely-disclosed expert
witness testimony even if they are designated as
"supplemental reports." Caterpillar Inc.,
No. 14-CV-24277, 2016 WL 3102225, at *5; See Corwin v.
Walt Disney Co., 475 F.3d 1239, 1252 (11th Cir. 2007)
(“a supplemental expert report may be excluded pursuant
to Federal Rule of Civil Procedure 37(c) if a party fails to
file it prior to the deadline imposed"); Cook v.
Royal Caribbean Cruises, No. 11-20723, 2012 WL 2319089
(S.D. Fla. June 15, 2012) (refusing to allow supplemental
report after discovery cut-off); Goodbys Creek, LLC v.
Arch Ins. Co., No. 3:07-cv-947, 2009 WL 1139575, at *2
(M.D. Fla. Apr. 27, 2009) ("Rule 26(e) allows
supplementation of expert reports only where a
disclosing party learns that its information is incorrect or
incomplete.... [A] report that suffers from a major omission
cannot be cured by the use of supplementation.").
party, therefore, cannot abuse Rule 26(e) and use a
supplement to "merely bolster a defective or problematic
expert witness report." Id. at *6 (citing
Cochran v. The Brinkmann Corp., No. 1:08-cv-1790,
2009 WL 4823858, at *5 (N.D.Ga. Dec. 9, 2009) (Rule 26(e)
"is not a device to allow a party's expert to engage
in additional work, or to annul opinions or offer new ones to
perfect a litigating strategy."), aff'd, 381
Fed.Appx. 968 (11th Cir. 2010)): see also Rojas v.
Marko Zaninovich, Inc., No. 1:09-CV-00705 AWI, 2011 WL
4375297, at *6 (E.D.Cal. Sept. 19, 2011) ("An
expert's duty to supplement under Rule 26(e), is not a
right to supplement at will."). A party may not
supplement as a way to remedy a deficient expert report.
Caterpillar Inc., No. 14-CV-24277, 2016 WL 3102225, at ...