United States District Court, D. New Jersey
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE
the Court is an application by Plaintiffs to strike the third
supplemental expert report authored by Defendants' expert
Eric Cunningham (the “Third Supplement”), which
was served on October 31, 2019. ECF No. 33. Defendants have
opposed Plaintiffs' application. ECF No. 35.
short, Defendants contend that service of the Third
Supplement is untimely and made in bad faith. Pursuant to the
January 28, 2019 Scheduling Order, the deadline for
Defendants' expert disclosures was May 6, 2019.
Plaintiffs consented to a short extension of that deadline,
and Defendants' expert disclosures were served on May 10,
2019. The disclosures indicated that Mr. Cunningham had
prepared a total of three reports--an initial report dated
April 7, 2017, and two supplements dated September 1, 2017,
and May 10, 2019, respectively.
25, 2019, Defendants deposed Plaintiffs' expert Kevin J.
Miley. As explained by Defendants, “[f]ollowing the
deposition of [Mr. Miley], Mr. Cunningham reviewed the
transcript to determine if Mr. Miley's testimony affected
any of the opinions expressed in Mr. Cunningham's
previous reports. Mr. Cunningham's review resulted in the
Third Supplement...” ECF No. 35 at 2.
maintain that Defendants' untimely disclosure is
“neither substantially justified nor harmless”
and they are prejudiced by the untimely report. ECF No. 33 at
3. While the Third Supplement purports to address the
testimony given by Mr. Miley on June 25, 2019, it was served
on October 31, 2019, over four months after Mr. Miley's
deposition. Further, it was served five months after the
deadline for Defendants' expert disclosures, two weeks
before the deadline for Daubert motions, a month
before the dispositive motion deadline, and the day before
the close of all fact discovery. Plaintiffs contend the late
disclosure “left Plaintiffs hardly any time to consult
with their own expert concerning Mr. Cunningham's most
recent conclusions or to depose Mr. Cunningham” before
the various deadlines.
response, Defendants argue that Plaintiffs “have
suffered absolutely no prejudice or surprise” by the
Third Supplement because it “does not state any new
opinions or in any way alter the prior opinions expressed by
Mr. Cunningham.” ECF No. 35 at 1, 3. As such,
Plaintiffs contend the production of the Third Supplement is
26(a) governs the disclosure of expert testimony. “A
party must make [its expert] disclosures at the times and in
the sequence that the court orders.” Fed.R.Civ.P.
26(a)(2)(D). Supplementation of expert disclosures, however,
is required under certain circumstances. Rule 26 provides
that disclosures under Rule 26(a) must be supplemented
“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” or is supplementation is “ordered
by the court.” Fed.R.Civ.P. 26(a)(2)(E) and 26(e).
Importantly, “Rule 26 does not give parties the right
to freely supplement, especially after court-imposed
deadlines.” Hartle v. FirstEnergy Generation
Corp., 7 F.Supp.3d 510, 517 (W.D. Pa. 2014).
Furthermore, deadlines in a Case Management Order may be
modified only upon showing of good cause. Fed.R.Civ.P. 16(f).
Court will strike the submission as untimely. The Third
Supplement does not seek to, for example, correct an
inadvertent error or omission. See Fed. R. Civ. P.
26(e)(2) (extending to experts a party's duty to
supplement a disclosure if “in some material respect
the disclosure or response is incomplete or
incorrect.”). Rather, the purpose of the Third
Supplement - as expressly described in the supplement itself
- was to “evaluate”, “analyze and comment
on” the deposition testimony of Mr. Miley. See
Third Supplement at 1 attached to Letter at ECF No. 35. As
such, Defendants' supplement is outside the scope of the
Scheduling Order and was served well past the deadline set
forth in that Order.
Defendants have not established good cause for modifying the
Scheduling Order. As described by Defendants, the Third
Supplement is “simply a re-affirmation of Mr.
Cunningham's previously stated opinions.” ECF No.
35 at 2. As such, the Court finds there is neither good cause
nor substantial justification to allow the supplementation.
the burden is on Defendants to demonstrate that the timing of
their service of the Third Supplement was consistent with the
Federal Rules of Civil Procedure and the Court's Orders
in this case. Defendants have not met this burden. For the
reasons above, the Court finds the Third Supplement to be an
untimely and improper supplement to the report of Mr.
Cunningham. Consequently, IT IS on this
9th day of December 2019
that the Third ...