Opinion
3:22-CV-72 (CAR)
03-05-2024
JULIE G. JENKINS and JAMES P. GUNN, Plaintiffs, v. PLATEAU EXCAVATION, INC., ALIF TRANSPORT, INC., and DANIEL BRUCE, Defendants.
ORDER ON DEFENDANT ALIF TRANSPORT INC.'S MOTION TO EXCLUDE EXPERT AND DEFENDANTS' JOINT MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY
C. ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT
Plaintiffs Julie Jenkins and James Gunn filed this suit seeking damages pursuant to the Clean Water Act, 33 U.S.C. § 1365, and Georgia tort law for erosion and sedimentation on their properties allegedly caused by Defendants' actions. Currently before the Court is Defendant Alif Transport, Inc.'s Motion to Exclude Expert Brian Wellington and Defendants' Daniel Bruce, Plateau Excavation, Inc., and Alif Transport, Inc.'s Joint Motion for Extension of Time to Complete Discovery. The Court HEREBY DENIES Defendant Alif Transport's Motion to Exclude Expert [Doc. 83] and GRANTS Defendants' Joint Motion for Extension of Time [Doc. 85].
I. Motion to Exclude Expert Brian Wellington
Defendant Alif Transport moves to exclude Plaintiffs' expert Dr. Brian Wellington due to Alif's alleged confidential relationship with Dr. Wellington. Before Plaintiffs retained Dr. Wellington, Alif's defense counsel, Andrea Pawlak, had discussions with Dr. Wellington about serving as Alif's expert. Moreover, attorney Pawlak asserts that she has known and worked with Dr. Wellington for at least fourteen years. But Pawlak's broad discussions related to this case and working relationship on other cases with Dr. Wellington are insufficient to warrant Dr. Wellington's exclusion as Plaintiffs' expert.
Defendant Alif Transport's Reply Brief [Doc. 89 at 2].
Attorney Pawlak states that she emailed Dr. Wellington initially about this case on November 9, 2022, and gave him a list of names to do a conflict check. Dr. Wellington confirmed that he had no conflicts. Attorney Pawlak's November 14th billing records show she “[c]onfer[red] with Brian Wellington on [the] expert role” and asked Dr. Wellington about an engagement letter; he replied with a blank retention letter saying he was “[l]ooking forward to working with you too.” Pawlak never executed the retention letter.
Defendant Alif Transport's Motion to Exclude Expert [Doc. 83 ¶ 1].
Doc. 83 ¶ 3.
Id. ¶ 5; Doc. 83-3 at 1.
Doc. 83 ¶ 4.
In the following 13 months, Pawlak emailed Dr. Wellington on two occasions. First, in February 2023, Pawlak emailed Dr. Wellington about another case and mentioned the present case in passing. Seven months later, in September 2023, Plaintiffs retained Dr. Wellington. Pawlak contacted Dr. Wellington one further time in October 2023 about an unrelated case and mentioned the present case. Dr. Wellington replied but did not mention this case or his recent retention.
Id. ¶ 6.
Declaration of Craig Pendergrast [Doc. 87-1 ¶ 2].
Id. ¶ 10.
Dr. Wellington avers in his Declaration he had “no recollection of being retained” by Pawlak, and she never completed his retention form. He further asserts that the only information Pawlak provided to him relating to the case was “that it was a Clean Water Act case, the names of the parties, and the address of the property.” Plaintiffs have received invoices totaling $8,889.08 for the work Dr. Wellington has completed thus far.
Declaration of Dr. Brian Wellington [Doc. 87-2 ¶ 10].
Id. ¶ 10.
Doc. 87-1 ¶ 12.
“In determining whether to disqualify a party's expert . . . a district court may consider such factors as: (1) ‘whether the other party had a confidential relationship with the expert;' (2) ‘whether it was objectively reasonable for the other party to believe that it had such a relationship;' and (3) ‘whether the other party did, indeed, disclose confidential information to the expert.'”
Cameron v. Peach County, No. 5:02-cv-41-1 (CAR), 2003 WL 26098541, *1 (M.D. Ga. Aug. 11, 2003) (quoting Wyatt v. Hanan, 871 F.Supp. 415, 419 (M.D. Ala. 1994)).
Alif argues it is “objectively reasonable” to believe Dr. Wellington was Alif's consulting expert based on Pawlak's early communication with Dr. Wellington about this case and the length of their professional history. Plaintiffs counter Defendant never retained Dr. Wellington, and he has no memory or record of any privileged or confidential information provided to him.
Doc. 83 at 9; see Doc. 89 at 3.
Doc. 87 at 6.
“[A]bsent equitable reasons to the contrary, any substantial ambiguity regarding whether there is a confidential relationship between an attorney and an expert should be resolved against the attorney seeking to invoke the relationship.” “Certainly, as a general proposition, lawyers, as ‘repeat players' in litigation, are in the best position to ensure that they and a consulting expert ‘have a clear and unambiguous understanding that a confidential relationship has been created.'” “Thus, ‘because lawyers seeking to invoke the confidential relationship have the knowledge, experience, and the ability to avoid the conflict, it is appropriate that the consequences for failing to take the necessary precautionary measures should fall upon them.'”
Cameron, 2003 WL 26098541, *3 (quoting Wyatt v. Hanan, 871 F.Supp. 415, 420 (M.D. Ala. 1994)).
Id. (quoting Wyatt, 871 F.Supp. at 420-21).
Id.
Here, both parties agree Alif did not sign Dr. Wellington's retention letter. Although Dr. Wellington has worked as a consulting expert with Pawlak before, Pawlak “knew how to best form such a relationship” and failed to do so. Pawlak has not shown she actually disclosed any confidential or privileged information to Dr. Wellington-the best she can show is that she “confer[red]” with him about the expert role ten months before he was retained by Plaintiffs' counsel. Moreover, because the Eleventh Circuit does not “recognize any blanket rule or policy against ‘side-switching,'” the Court DENIES Defendant Alif Transport's Motion to Exclude Expert [Doc. 83].
Cameron, 2003 WL 26098541, *3.
Doc. 83 at 10.
Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1445 (11th Cir. 1998).
II. Motion for Extension of Time to Complete Discovery
Defendants seek extensions of time: to depose Dr. Wellington, for Defendants to disclose their experts and reports and make them available for deposition, for supplemental expert reports and depositions, to complete discovery, and to file dispositive and Daubert motions. Plaintiffs agree additional time is needed to complete discovery, noting they may need to take up to twenty fact depositions.
The Court GRANTS Defendants' Motion for Extension of Time [Doc. 85] and sets the following deadlines:
Plaintiffs' Expert Deposition Deadline
April 18, 2024
Defendants' Expert Disclosure Deadline
May 4, 2024
Defendants' Expert Deposition Deadline
June 4, 2024
Supplemental Report Deadline
June 18, 2024
Supplemental Deposition Deadline and Discovery Ends
July 18, 2024
Dispositive/Daubert Motion Deadline
July 18, 2024
The Court HEREBY DIRECTS the parties to create a schedule of depositions they intend to take and submit it to the Court by Tuesday, March 19, 2024.
SO ORDERED