United States District Court, D. Massachusetts
MONICA REDMOND-NIEVES, Personal Representative of the Estate of Edgard Nieves, Plaintiff,
OKUMA AMERICA CORPORATION, & ROBERT E. MORRIS COMPANY, LLC, Defendant.
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
STRIKE THE REPORT OF PLAINTIFF'S EXPERT, STEVEN F. WIKER,
DATED APRIL 29, 2019 (DOCKET NO. 117)
TIMOTHY S. HILLMAN DISTRICT JUDGE
Redmond-Nieves (“Plaintiff”) filed this wrongful
death action against Okuma America Corporation
(“Okuma”) and Robert E. Morris Company, LLC, on
behalf of the estate of her husband, Edgard Nieves
(“Mr. Nieves”). Okuma moves to strike the April
29, 2019, expert report of Plaintiff's expert, Steven F.
Wiker (“Mr. Wiker”), as untimely. (Docket No.
117). For the reasons below, the Court denies
Court scheduled December 1, 2018, as the deadline for
Plaintiff to disclose her experts (Docket No. 76); January
31, 2019, as the deadline for Okuma to depose Plaintiff's
experts (Docket No. 90); March 3, 2019, as the deadline for
Okuma to disclose its experts (Docket No. 90); and April 16,
2019, as the deadline for Plaintiff to depose Okuma's
experts (Docket No. 102).
December 3, 2018, Plaintiff submitted an expert report from
Mr. Wiker (the “December Report”) to Okuma.
(Docket No. 118-1). In the December Report, Mr. Wiker offered
a laser-based time-of-flight sensor as a reasonable
alternative to the design of Okuma's L1420 CNC Lathe. He
did not propose any other alternative designs. During his
January 31, 2019, deposition, however, Okuma questioned Mr.
Wiker about a light-based time-of-flight sensor, an
alternative design proposed by Plaintiff's other expert
witnesses. (Docket Nos. 118-3, 122-2).
after his deposition, Mr. Wiker became seriously ill. (Docket
No. 122-1 at 3). He recovered towards the end of February and
began assisting in another trial from March 1 through March
10. (Docket No. 122-1 at 3). He only had a chance to return
to his other consulting duties after this trial ended.
(Docket No. 122-1 at 3). On April 29, 2019, Plaintiff
submitted an additional expert report from Mr. Wiker
addressing the feasibility of a light-based time-of-flight
sensor (the “April Report”). (Docket No. 118-2).
Defendant moved to strike the April Report on June 7, 2019.
(Docket No. 117).
contends that the April Report is untimely under Federal Rule
of Civil Procedure 26(a) because Plaintiff submitted it after
the court's December 1, 2018, deadline for expert
disclosures. (Docket No. 118 at 4). But Plaintiff argues that
Rule 26(e), not Rule 26(a), governs the timeliness of the
April Report because it merely supplements Mr. Wiker's
December Report. Rule 26(e) provides that parties have an
ongoing duty to supplement their discovery disclosures and
that, for expert witnesses, this “duty to supplement
extends both to information included in the report and to
information given during the expert's deposition.”
See also Allstate Interiors & Exteriors, Inc. v.
Stonestreet Const., LLC, 730 F.3d 67, 76 (1st Cir.
2013). Supplemental information “must be disclosed by
the time the party's pretrial disclosures . . . are
due.” Fed.R.Civ.P. 26(e)(2).
Court agrees that Rule 26(e) controls the timeliness of the
April Report. During the deposition of Mr. Wiker, Okuma
repeatedly asked about light-based time-of-flight sensors.
(Docket Nos. 118-3 at 8, 13, 15, 21-27, 32-33; 122-32 at 4-5,
8). The April Report addresses the feasibility of light-based
time-of-flight sensors. (Docket No. 118-2). It supplements
the December Report based on the information discussed during
Mr. Wiker's deposition. See Fed. R. Civ. P.
even assuming arguendo that the April Report is
untimely under Rule 26(e) standards, the Court denies the
motion to strike under Federal Rule of Civil Procedure
37(c)(1), which provides that a party may not use
supplemental information “to supply evidence on a
motion, at a hearing, or at a trial, unless the failure [to
timely supplement] was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). First, Plaintiff has
provided substantial justification for the delay. Mr. Wiker
fell seriously ill shortly after his deposition and did not
recover until the end of February. (Docket No. 122-1 at 3).
Then in March, Mr. Wiker was busy assisting in another trial.
(Docket No. 122-1 at 3). Plaintiff's failure to provide
his April Report earlier was reasonable under the
Okuma cannot show that the delay caused prejudice. As Okuma
admits, Plaintiff's other experts had already disclosed a
light-based time-of-flight sensor. (Docket No. 118 at 6-7).
Therefore, contrary to its assertions otherwise, Okuma will
not need to expend significant further resources defending
against the alternative proposed in the April Report. And to
the extent that Okuma contends that it was harmed because it
could not include the April Report in its Motion for Summary
Judgment, the information in the April Report would not
change the Court's finding that the parties have raised
genuine issues of material fact relative to Count III, so
there can be no prejudice on this account. The Court thus
denies the motion to strike (Docket No. 117).