United States District Court, D. New Jersey
August 8, 2005.
RICHARDS MANUFACTURING COMPANY, et al., Plaintiffs,
THOMAS & BETTS CORPORATION, Defendant.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
THIS MATTER comes before the Court upon Defendant's Appeal
from an Order of the Magistrate Judge ordering Defendant to pay
costs associated with the potential deposition of Mr. Oliver
(docket item # 72). The Court, having considered the papers
submitted by the parties, for the reasons set forth below, and
for good cause shown, denies Defendant's Appeal and affirms the
Magistrate Judge's Order.
On or about April 14, 2005, Defendant sought leave to amend the
report of Lloyd Oliver, one of Defendant's experts. Defendant
sought to amend the report to correct certain financial
information identified by Plaintiffs as potentially incorrect.
The parties submitted letter briefs to Judge Bongiovanni, two from each side. Plaintiffs objected to
Defendant's request because of lateness, prejudice and the
expense that Plaintiffs would subsequently incur.
On or about July 28, 2004, Plaintiffs raised the issue of an
error in Mr. Oliver's report. On November 4, 2004, Plaintiffs
deposed Mr. Oliver, asked him about the error, and contemplated
the possibility of an amendment by Mr. Oliver and another
MR. POKOTILOW: And what I would suggest is if indeed
you modify your report because of [a mistake], and
indeed you submit it to us, as you must in order to
be able to modify your testimony at trial, we would
obviously reserve the right to come back and depose
you in that area.
(Nov. 4, 2004 Oliver Dep. p. 169, lines 7-12.) At the November 4,
2004 deposition, Mr. Oliver was unprepared to amend his opinion.
During the pre-trial conference held on March 29, 2005,
Defendant advised the Magistrate Judge that it would seek to
amend Mr. Oliver's report with respect to the information
identified by Plaintiffs as incorrect. Judge Bongiovanni
permitted the parties to submit letter briefs regarding this
issue. Defendant's letter set forth the basis for the amendment,
explaining the reconciliation of the "differences between two
sets of . . . internal standard cost information identified by
[Plaintiffs]." (Winter Apr. 14, 2005 Ltr.) Defendant cited
Crowley v. Chait, 322 F. Supp. 530, 540 (D.N.J. 2004) in
support of the proposition that the court should permit an
expert, even over objection, to correct mistakes in an expert
Plaintiffs objected to Defendant's request as untimely, as
prejudicial, and for the reason that they would incur expense and
delay if Mr. Oliver's report was supplemented. Plaintiffs pointed
to the notification of the mistake as early as July 28, 2004, and
noted that at the November 4, 2004, deposition of Mr. Oliver he was
unprepared to address the inconsistency despite having been
informed of the problem. Further, Plaintiffs asserted that
between Mr. Oliver's deposition and the submission of the draft
pre-trial order, Defendant had approximately 35 days to
investigate the issue and supplement the report for its inclusion
in the pre-trial order filed with the Court on or about December
15, 2004. Finally, Plaintiffs argued that when the issue of
amendment was finally raised by Defendant at the pre-trial
conference in March 2005, Defendant failed to show any reason for
the significant delay, which would now cause even further delay
in the litigation process and considerable expense to Plaintiffs.
As such, Plaintiffs urged the Court to consider assigning all
costs associated with the amendment, including attorneys' fees,
deposition costs, etc., to Defendant if the Court did indeed
allow the amendment.
Defendant responded that Plaintiffs would have incurred the
same costs had the amendment occurred earlier in the litigation.
Defendant characterized the request for costs as a "sanction,"
and argued that whether or not Defendant chose to incur costs in
addressing the supplemental report was its own tactical decision.
Defendant did not provide any reason for what it viewed as a
"so-called delay," only suggesting that the "lapse of time" issue
did not create prejudice and would be best directed toward the
expert himself. (Winter Apr. 20, 2005 Ltr.) Defendant said that
its understanding was that the delay arose from Mr. Oliver's and
Defendant's desire to ensure the information was accurate.
Judge Bongiovanni granted Defendant's request through the April
27, 2005 Order, in which she allowed Mr. Oliver to amend his
report in order to correct certain financial information identified as potentially incorrect. However, in
doing so, she ordered that any costs incurred by Plaintiffs due
to the amendment would be paid by Defendant. Defendant now
appeals the portion of Judge Bongiovanni's April 27, 2005 Order
regarding the assignment of Plaintiffs' costs.
A. Standard of Review
The standard of review of a magistrate judge's decision depends
upon whether the issue addressed was dispositive or
non-dispositive. Andrews v. Goodyear Tire & Rubber Co.,
191 F.R.D. 59, 67 (D.N.J. 2000). A district court may reverse a
Magistrate Judge's order on a non-dispositive matter only if it
finds the ruling clearly erroneous or contrary to law. Id.;
See also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a);
L. Civ. R. 72.1(c)(1)(A). The district court is bound by the
clearly erroneous rule as to findings of fact, while the phrase
"contrary to law" indicates plenary review as to matters of law.
See Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.
1992). According to the Supreme Court, "a finding is `clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
"Where a magistrate judge is authorized to use his or her
discretion, the decision will only be reversed for an abuse of
that discretion." Cooper Hosp. v. Sullivan, 183 F.R.D. 119, 127
Pretrial matters, such as discovery, are treated as
non-dispositive matters in this Court. Andrews, 191 F.R.D. at 68. Therefore, the April 27, 2005
Order of Magistrate Judge Bongiovanni will be considered under
the non-dispositive standard and only reversed if this Court
determines the magistrate judge's ruling was "clearly erroneous
or contrary to law."
B. Defendant's Appeal
Defendant brings a Motion to Vacate Portions of Magistrate
Judge Bongiovanni's April 27, 2005 Order Awarding Sanctions,
which is actually an appeal of her decision to assign costs
incurred by Plaintiffs associated with Mr. Oliver's amended
report. Defendant does not reference the standard of review of a
magistrate judge's decision, but this Court will assume that
Defendant seeks to vacate portions of the decision because it is
"clearly erroneous and contrary to law."
Defendant asserts that Judge Bongiovanni's order that Defendant
pay all fees and costs of Plaintiffs' associated with the
deposition of Mr. Oliver is an improper sanction. Defendant
argues that because it did not violate rule 16(f) or 37(b), there
is no basis for sanctions. Further, Defendant argues that Judge
Bongiovanni did not set forth authority for this sanction and
that the "sanction" is unreasonable because there was no guidance
set forth as the exact fees and costs to be paid. Defendant
suggests that lack of the word "reasonable" from the Order
combined with the "creativity and intelligence of the attorneys
involved in this litigation," will result in attorney
"bicker[ing]" and an inability of the parties to reach agreement
on the costs and fees allowed.
As a first matter, this Court does not agree with Defendant's
characterization of Judge Bongiovanni's order as a "sanction." Nowhere in the Order
does Judge Bongiovanni suggest that she sought to impose a
punishment on Defendant for its request. The Court appreciates
that Defendant may view the costs and fees associated with this
late amendment burdensome, but that does not necessarily equate
to a court ordered sanction. Instead, this Court considers the
order to pay costs and fees a condition imposed on Defendant
should it so chose to make its amendment. Nothing about the order
required Defendant to amend the report. The Court recognizes that
Defendant should be allowed to amend where the correction will
indeed improve the quality and accuracy of an expert report,
Crowley v. Chait, 322 F. Supp. 2d 530, 540 (D.N.J. 2004),
however, the magistrate judge may impose conditions or
restrictions on discovery, especially discovery requests
submitted at the eleventh-hour. Pilot Air Freight Corp. v.
Target Logistic Servs., 2003 U.S. LEXIS 6634, at *6 (E.D. Pa.
Jan. 24, 2003) (allowing paintiff to amend a report with the
condition that plaintiff reimburse defendant up to $5,000 in
costs associated with the change).
The Court is unpersuaded by Defendant's suggestion that
Plaintiffs need not incur any costs associated with the amendment
of Mr. Oliver's report. The Court is well aware of the issues
involved in this litigation and Plaintiffs would be remiss if
they did not follow up on changes to an expert report. Nor is
this Court persuaded that Judge Bongiovanni's condition is
erroneous because Plaintiffs would have incurred costs earlier in
the litigation. As stated earlier, it was at Defendant's option
to amend the report pursuant to the conditions imposed in the
April 27, 2005 Order. Indeed, in executing that option, as it
appears they did, they agreed to the condition. Further, the same
condition very well might have been imposed even if Defendant's request
came before the pre-trial conference.
Finally, this Court has the utmost faith that the fine
attorneys in this matter will be able to work together and reach
resolution on the payment of fees and costs incurred in the
administration of the amended report. The Court sees no reason
why it needs to oversee seasoned and respectable counsel in such
a basic matter.
Upon review of the Magistrate Judge's April 27, 2005 Order,
this Court finds nothing clearly erroneous or contrary to law
about the decision to order Defendant to pay Plaintiffs' costs
and fees associated with the amendment of Mr. Oliver's report.
The Order is affirmed.
Having reviewed the parties' submissions both to this Court and
to the Magistrate Judge, for the reasons set forth below, and for
good cause shown, this Court affirms the Magistrate Judge's April
27, 2005 Order. An appropriate form of order will be filed
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