United States District Court, D. Maryland
MEMORANDUM AND ORDER
P. GESNER CHIEF UNITED STATES MAGISTRATE JUDGE
pending before the court are Plaintiff's Motion to
Exclude the April 16, 2018 Expert Report of Stephen G.
Bronars PhD. (“Motion”) (ECF No. 200),
Defendant's Memorandum of Law in Opposition to
Plaintiff's Motion To Exclude the April 16, 2018 Expert
Report of Stephen G. Bronars PhD. (“Opposition”)
(ECF No. 208), and Plaintiff EEOC's Reply Brief in
Support of Its Expedited Motion to Exclude the April 16, 2018
Expert Report of Stephen G. Bronars PhD (“Reply”)
(ECF No. 212). No. hearing is necessary. Loc. R. 105.6. For
the reasons discussed below, plaintiff's Motion is
the United States Equal Employment Opportunity Commission
(“plaintiff, ” or “EEOC”), filed this
employment action against defendants Performance Food Group,
Inc. and associated entities (“defendants”) on
June 13, 2013, alleging unlawful sex-based discrimination in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq. (ECF No.
1.) The case was referred to the undersigned by Judge Garbis
for all discovery and related scheduling, pursuant to 28
U.S.C. § 636(c) and Local Rule 301, on May 22, 2018.
(ECF No. 209.)
Motion seeks to exclude the defendants' supplemental
expert report of Dr. Stephen G. Bronars, PhD. (“Dr.
Bronars”) pursuant to Fed.R.Civ.P. 16, 26, and 37 on
the grounds that it is not a true “supplemental”
report under Fed.R.Civ.P. 26 and, thus, it was untimely
filed. (ECF No. 200-1). In its Opposition, defendants states
that the report is a true supplemental report and was timely
filed in accordance with the scheduling order governing the
case at the time. (ECF No. 208). Defendants also argue that
even if the court finds the report is not a true supplemental
report, plaintiff has not been prejudiced and exclusion is
not warranted. Id.
scheduling order relevant to this motion was issued in
accordance with a joint motion filed by the parties. (ECF
Nos. 190-1 and 191). This scheduling order provided that
defendants were required to “name all expert witnesses
and serve EEOC with expert report(s)” by December 18,
2017. (ECF No. 191). The EEOC then had until March 5, 2018 to
“name any rebuttal expert witnesses and serve PFG with
rebuttal expert reports.” Id. Lastly, the
close of expert discovery was April 16, 2018. Id.
Defendants filed Dr. Bronars' first report in a timely
manner on December 18, 2017, and plaintiff timely submitted
its rebuttal expert report. Defendants provided plaintiff
with Dr. Bronars' supplemental report on April 16, 2018,
the final day of expert discovery. Thereafter, plaintiff
filed the present Motion seeking to exclude Dr. Bronars'
report. No. trial has been set in this case and summary
judgment briefing has been stayed pending the resolution of
other pending motions. (ECF No. 213).
to Federal Rule of Civil Procedure 26, if a witness “is
one retained or specifically employed to provide expert
testimony in the case, ” such a witness must provide a
written expert report. Fed.R.Civ.P. 26(a)(2)(B). A party must
supplement its expert disclosure when it “learns that
in some material respect the disclosure or response is
incomplete or incorrect.” Fed.R.Civ.P. 26(e)(A). The
parties “must make these disclosures at the times and
in the sequence that the court orders.” Fed.R.Civ.P.
26(a)(2)(D). The “duty to supplement extends to both
information included in the report and to information given
during the expert's deposition. Any additions or changes
to this information must be disclosed” at least 30 days
before trial. Fed.R.Civ.P. 26(e)(2); Fed.R.Civ.P. 26(a)(3).
If a party fails to disclose or supplement the information
required by Rule 26(a) or (e), “the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”
threshold issue here is whether Dr. Bronars' report is a
true supplement to his initial report or an untimely new
report in violation of the court's discovery schedule.
“Supplementation under the Rules means correcting
inaccuracies, or filling the interstices of an incomplete
report based on information that was not available at the
time of the initial disclosure.” EEOC v.
Freeman, 961 F.Supp.2d 783, 797 (D. Md. 2013) (citing
Keener v. United States, 181 F.R.D. 639, 640 (D.
Mont. 1998)). “Courts distinguish true supplementation
(e.g., correcting inadvertent errors or omissions) from
gamesmanship” when analyzing whether a report is
supplemental. East West, LLC v. Rahman, No.
1:11CV1380, 2012 WL 4105129, at *6 (E. D. Va. Sept. 17, 2012)
(citing Gallagher v. Southern Source Packaging, LLC,
568 F.Supp.2d 624, 631 (E.D. N.C. 2008)). The rule
“does not cover failures of omission because the expert
did an inadequate or incomplete preparation.”
Akeva, LLC. v. Mizuno Corp., 212 F.R.D. 306, 310
(M.D. N.C. 2002). Rule 26(e) “envisions supplementation
when a party's disclosures happen to be defective in some
way so that the disclosure was incorrect or incomplete, and
therefore, misleading . . . To construe supplementation to
apply whenever a party wants to bolster or submit additional
expert opinions would wreak havoc in docket control and
amount to unlimited expert opinion preparation.”
Akeva, 212 F.R.D. at 311.
case, Dr. Bronars' supplemental report (ECF No. 200-5)
reaches the same conclusion as the first report, but includes
new opinions and more sophisticated analyses and statistical
modeling. The first report was largely a critique of
plaintiff's first expert report, attacking the
statistical methods and conclusions reached. In his
supplemental report, Dr. Bronars reaches the same conclusion
but also details his own analysis using different statistical
methods. Notably, the supplemental report does not correct
any errors or omissions in the first report and is based on
materials and information that were available to Dr. Bronars
when he submitted his first report, not based on newly
discovered evidence. The supplemental report appears to be
“intended both as an expansion of [defendant's]
earlier report as well as a means to impermissibly broaden
the scope of the expert opinions that Defendants seek to
admit.” East West, LLC, 2012 WL 4105129, at
*7. Accordingly, I conclude that Dr. Bronars'
supplemental report is not a true supplement to his initial
report consistent with Federal Rule of Civil Procedure 26(e).
I turn now to the question of whether exclusion of the
report, as plaintiff requests, is warranted.
to Federal Rule of Civil Procedure 37(c)(1), if a party fails
to provide information required by Rule 26 or a court's
scheduling order, exclusion is appropriate unless the failure
“was either substantially justified or is
harmless.” District courts have broad discretion in
making this determination. Bresler v. Wilmington Trust
Company, 855 F.3d 178, 190 (4th Cir. 2017).
Courts in the Fourth Circuit consider the following factors
courts in evaluating whether nondisclosure of evidence is
substantially justified or harmless:
(1) the surprise to the party against whom the evidence would
be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure
to disclose the evidence.
Id. at 596. The first and last factors do not
support a finding of substantial justification or
harmlessness. As to the first factor, plaintiff was
presumably surprised when defendants submitted the
supplemental report on the final day of discovery, given that
it contained new expert opinions. The report, however, does
appear to be consistent with defendants' litigation
position. See In re Mercedes-Benz Antitrust
Litigation, No. 99-4311, 2006 WL 2129100, at *9 (D. N.J.
July 26, 2006) (surprise to opposing party is minimal when
new information is entirely consistent with party's
position throughout litigation). And as to the last factor,
defendants have not provided any ...