Kovaco v. Rockbestos-Suprenant Cable Corp.
Amendment Was Intended To Supplant Original Expert Report
Civil Procedure | Discovery | Evidence | Admissibility | Expert Witnesses | Labor and Employment | Discrimination
- U.S. District Court
- U.S. District Court
- Apr 15 2013 (Date Decided)
- FitzSimmons, J.
A plaintiff may be allowed to amend an expert report, provided that there is no prejudice to the defendant, and the plaintiff reimburses the defendant's costs for filing an objection. The plaintiff, Josik Kovaco, sued the defendant, Rockbestos-Suprenant Cable Corp., alleging job discrimination. The parties agreed to disclose experts and expert reports, on or before Dec. 1, 2011. The date to disclose experts was extended to March 16, 2012. The plaintiff disclosed John McNamara as an expert on March 27. The defendant filed a motion in limine, to bar the testimony of the plaintiff's expert, on May 12. The parties entered settlement negotiations and dates to respond to motions were extended. Settlement negotiations were unsuccessful. The plaintiff filed an amended expert report on October 15. The defendant moved to strike and argued that the amended expert report was filed after the final date for expert disclosures and failed to correct errors or omissions in the original report. The plaintiff objected that the amended expert report did not prejudice the defendant. An expert witness possesses the duty to amend an expert report, if the party learns that in some material respect the disclosure or response is incomplete or incorrect. The District Court found that the plaintiff's amended expert report was intended to cure deficiencies and to supplant, as opposed to supplement, the plaintiff's original expert report. The plaintiff's amended expert report was not filed timely. The court found that the late disclosure of the amended expert report did not prejudice the defendant, because the plaintiff can reimburse the defendant for costs of preparing the motion in limine. The court denied the defendant's motion to strike, provided that the plaintiff pays attorneys' fees in connection with the motion in limine.