United States District Court, D. Maryland
Catherine C. Blake, United States District Judge
this court are the plaintiffs' motion in limine regarding
defense expert James Crapo, M.D. (ECF 931), plaintiffs'
motion in limine regarding defense expert Tony Watson, C.I.H.
(ECF 932), and plaintiffs' motion in limine regarding
defense expert Lucian Chirieac, M.D. (ECF 933). The motions
have been fully briefed and no oral argument is necessary.
For the reasons set forth below, the court will deny the
plaintiffs' motions in limine.
a case brought by John Dugger, Jr., individually and as
personal representative of the estate of John Dugger, Sr.,
well as John Dugger's spouse and surviving children (the
"plaintiffs") against Honeywell International Inc.
("Honeywell"), successor-in-interest to Bendix
Corporation, alleging that Mr. John Dugger developed
mesothelioma as a result of his exposure to asbestos
contained within Bendix brakes. Honeywell intends to call
expert witnesses Dr. James Crapo, Tony Watson, and Dr. Lucian
Chirieac to testify at trial. These three witnesses will all
generally testify as to Mr. Dugger's exposure to asbestos
while in the Navy and the likelihood that his mesothelioma
was caused by that exposure rather than his exposure to
asbestos in Bendix brakes. ECF 934-1 at 2-3 (Dr. Crapo); ECF
935-1 at 2-3 (Dr. Chirieac); ECF 936-1 at 2-3 (Mr. Watson).
discovery closed in this case on August 8, 2018. Scheduling
Order, ECF 571. On August 13, 2018, Honeywell retained
McCaffrey & Associates to search for additional documents
relating to Mr. Dugger's service on Navy boats.
Honeywell's Mem. in Supp. of its Opp'n to Pls.'
Mot. in Limine regarding James Crapo, ECF 934-1 at 3.
McCaffrey & Associates gave Honeywell these documents and
an accompanying memorandum on August 24, 2018. Mem. in Supp.
of Pls.' Mot. in Limine, ECF 931-1 at 3-4; ECF 934-1 at
3. Honeywell then provided these additional documents to its
experts for review, and the experts drafted supplemental
reports, which were provided to the plaintiffs in October
2018. ECF 931-1 at 2 (Dr. Crapo); ECF 932-1 at 2 (Mr.
Watson); ECF 933-1 at 2 (Dr. Chirieac). The plaintiffs seek
to exclude any testimony by Dr. Crapo, Mr. Watson, and Dr.
Chirieac that relies on the documents from McCaffrey &
Associates. ECF 931-1 at 3 (Dr. Crapo); ECF 932-1 at 4 (Mr.
Watson); ECF 933 at 4 (Dr. Chirieac). The plaintiffs contend
that the additional reports are not "supplemental"
reports under Rule 26(e), are not based on new evidence or
facts, and are instead meant to cure perceived deficiencies
in the deposition testimony of Honeywell's naval expert
John Graham. See ECF 931-1 at 4-6 (Dr. Crapo); ECF
932-1 at 3-7 (Mr. Watson); ECF 933-1 at 3-7 (Dr. Chirieac).
Honeywell responds that the additional reports are valid
supplements and were properly disclosed under Rule 26(e),
that the evidence relied on in the supplemental reports was
newly discovered, and regardless, that the supplemental
reports are substantially justified and there is no
prejudice. ECF 934-1 at 6-12 (Dr. Crapo); ECF 935-1 at 6-12
(Dr. Chirieac); ECF 936-1 at 6-12 (Mr. Watson).
Civ. P. 26(e)(2) requires a party to supplement its expert
report if it learns that the report is incomplete or
incorrect. This rule, however, is not a way to revise
testimony based on criticisms and challenges from the other
party. EEOC v. Freeman, 961 F.Supp.2d 783, 797 (D.
Md. 2013). Untimely opinions that do not qualify as
supplements under Rule 26 may be excluded under Rule 37(c).
Id. Rule 37(c)(1) provides that a party that fails
to disclose information "is not allowed to use that
information ... to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified
or is harmless." The non-disclosing party bears the
burden of establishing the nondisclosure was substantially
justified or harmless. Wilkins v. Montgomery, 751
F.3d 214, 222 (4th Cir. 2014). The "basic purpose"
of Rule 37(c)(1) is to prevent surprise and prejudice to the
opposing party. S. States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
Southern States, the Fourth Circuit set out a
five-factor test to determine if nondisclosure was
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." 318 F.3d at 597. District courts
have "broad discretion" to decide whether a
nondisclosure is substantially justified or harmless and are
not required to examine explicitly all of the factors in
Southern States. Wilkins, 751 F.3d at 222.
assuming that the supplemental expert reports do not qualify
as supplemental opinions under Rule 26, the failure to
disclose them earlier is harmless. There is minimal surprise
to the plaintiffs here because none of the experts changed
their opinions based on the new materials. Rather, they all
concluded that the materials further supported their original
conclusions. ECF 934-1 at 3 (Dr. Crapo); ECF 935-1 at 3 (Dr.
Chirieac); ECF 936-1 at 3 (Mr. Watson). Honeywell has also
offered to make these experts available for deposition on the
information in the supplemental reports. Further, the court
will order Honeywell to pay for reasonable costs associated
with these depositions, to further reduce any potential harm
to the plaintiffs. Finally, there is no trial date set, so
allowing the evidence would not disrupt the trial.
the court will deny the plaintiffs' motions in limine
regarding the supplemental reports by Dr. Crapo, Mr. Watson,
and Dr. Chirieac. A separate order follows.