In this federal court case, the plaintiff’s counsel provided the March 21, 2014 expert report of Dr. Jacqueline Moline on the court-ordered deadline of May 19, 2014. The defendants subsequently objected to the report, saying it failed to comply with the federal rules of civil procedure. In response, Dr. Moline’s report was supplemented by a letter dated May 21, 2014. Following several adjournments of Dr. Moline’s deposition at her request, her deposition went forward on January 8, 2015. On January 7, 2015, the plaintiff served an updated report for Dr. Moline. The defendants moved to preclude the use of the January 2015 disclosure and limit Dr. Moline to the disclosures of March and May 2014. The plaintiff opposed, arguing that the January report contained only non-substantive changes to comply with federal rules.

In allowing for the submission of the late report, the court stated: “In assessing whether a district court has exercised its discretion appropriately, the Court of Appeals for the Second Circuit considers: (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. In assessing prejudice, the Court considers ‘whether the assertion of the new claim would: (I) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction,” (citations omitted).

The court found that the plaintiff’s ability to establish elements of his wrongful death case may be severely compromised without the opinions of the January report, and thereby preclusion would impose a substantial risk of prejudice to the plaintiff. The court conversely found that, “Dr. Moline’s opinions regarding the link between exposure to asbestos and mesothelioma can hardly be characterized as novel nor can they be expected to substantively alter the defense of this action. Moreover, discovery has not closed and there is no trial date set. Accordingly, the Court exercises its discretion to deny defendants’ motion to preclude and grant plaintiff’s motion to permit late service of Dr. Moline’s January 6, 2015 expert report.”

The court also ruled to allow the defendants to conduct a supplemental deposition of Dr. Moline, and the plaintiff’s other expert, Dr. Strauchen, solely with respect to the new information in the January 2015 report. The defendants were also allowed to supplement their expert witness disclosure by July 31, 2015.

If you have questions about how these cases may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups