Opinion
MDL Docket No. 1290, Misc. No. 99mc0276.
May 2, 2005
MEMORANDUM OPINION
Pending before the Court is Defendants' Objections to Plaintiffs' Attempts to Introduce Late-Produced Damages Evidence for Claims Outside of their Expert Report ("Motion") [# 792]. Having carefully considered the Motion, its opposition, Defendants' reply, and the entire record herein, the Court will grant the Motion.
I. Discussion
Defendants ask the Court to preclude Plaintiffs from presenting evidence of damages outside of their original expert report. Pursuant to Rule 26(a)(2)(B), Plaintiffs' expert, Dr. Saha, submitted his expert report on April 19, 2004. The report provides calculations of damages incurred through December 31, 2003. Plaintiffs have a duty to supplement their expert report "at appropriate intervals" to include information thereafter required where the information disclosed in the report is incomplete and the additional information has not otherwise been made known to the other parties. Fed.R.Civ.P. 26(e)(1). In 2005, Plaintiffs obtained the data for damages incurred through the year 2004, and sought to extend their damages period accordingly. Thus, their expert report was incomplete and, under the rule, they had a duty to provide a supplement to that report. Dr. Saha's Supplemental Report analyzing the 2004 data that was submitted to Defendants on April 11, 2005.
A supplemental expert report must be disclosed by the time the parties' Rule 26(a)(3) pretrial disclosures are due. Fed.R.Civ.P. 26(e)(1). Pretrial disclosures must be made at least thirty days before trial. Fed.R.Civ.P. 26(a)(3). Trial here will begin on Tuesday, May 3, 2005. Further, the parties' pretrial disclosures in this case were due on March 30, 2005. Dr. Saha's supplemental report submitted to Defendants on April 11, 2005 was thus untimely under the rule. The Court finds that under Rules 26(e)(1) and (a)(3) of the Federal Rules of Civil Procedure, Plaintiffs are precluded from presenting evidence of damages outside of Dr. Saha's original supplemental report.
Plaintiff HCSC submitted raw 2004 data to Defendants on March 11, and 29, 2005. Plaintiffs are precluded from relying on this evidence at trial as, in addition to raising reliability concerns due to missing or incorrect data fields, it was only raw data that provided no documentation as to how Dr. Saha arrived at his new damage totals based on that raw data. Additionally, the data provided to Defendants prior to mediation on March 14, 2005 was merely a summary report created for the purpose of settlement negotiations that similarly did not provide any documentation as to how the totals included within it were calculated. As the admission of this evidence would prejudice Defendants in their ability to adequately analyze the data provided, Plaintiffs may not use this evidence at trial.
Where a party fails to disclose information as required by Rule 26, the party may still use that information at trial if the party had substantial justification for its failure or if the failure was harmless. See Fed.R.Civ.P. 37(c)(1). Plaintiffs state that they had substantial justification for not disclosing their supplemental data until after the deadline had expired. Plaintiffs claim they were substantially justified because (1) they did not have the data at issue in their possession until March of 2005, and (2) prior to the Court's March 31, 2005 ruling regarding the damage period, it would have been premature for Plaintiffs to supplement their damages evidence. Neither of these excuses justify granting Plaintiffs relief here. First, Plaintiffs do not explain why, if Plaintiffs had the data in their possession in March of 2005, they could not have produced it to Defendants by the end of that month. Second, as Defendants point out, Plaintiffs were obligated to provide supplementation until the Court ruled otherwise, which it ultimately did not do. The Court finds that Plaintiffs have not provided substantial justification for their failure to provide a timely supplement to their expert report.
Further, Plaintiffs' failure to provide Dr. Saha's supplemental report until a mere three weeks before trial is not harmless. The Court notes Plaintiffs' pattern of delay in response to Defendants' discovery requests concerning damages, and history of other dilatory tactics in this area. Defendants have been severely prejudiced by Plaintiffs' actions in their ability to analyze the data and Plaintiffs' calculations. Therefore, under Rule 37, Plaintiffs are not entitled to any relief.
II. Conclusion
For the foregoing reasons, the Court will grant the Motion. Accordingly, the Court will preclude Plaintiffs from relying upon at trial any data or report on damages incurred in the year 2004. Plaintiffs' damages are limited to those incurred up through December 31, 2003. An appropriate Order will accompany this Memorandum Opinion.