When Is It Too Late for a Site Inspection?

Timing is sometimes everything, even for site inspections.  When might a site inspection be untimely?  Consider this ruling in a generic slip and fall case that I handled.

Discovery opened, which I will call day 1.  On day 114 Plaintiff held a site inspection with Expert 1.  Initial expert disclosures occurred on day 211 and Plaintiff disclosed two liability experts (Expert 1 and Expert 2).  On day 215 Defendant moved to exclude Expert 2.  On day 229 Plaintiff requested a second site inspection, this time for Expert 2 to “validate” his opinions.  Defendant objected and sought a protective order.

Defendant argued Expert 2 was a retained expert and he was required to disclose “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them….”[1]  While supplemental expert reports are permitted, a party may not “use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report.”[2]  Defendant argued the data that Expert 2 needed to “validate” his opinions were data that he could and should have gathered at some point in the 211 days before the initial expert disclosure deadline.  As a result the site inspection should not be permitted.

The court issued a creative ruling.

Although it may ultimately be shown that a supplement to [Expert 2’s] report after he conducts a site inspection may be excluded, Defendant does not make a sufficient showing that [Expert 2] should be precluded from conducting a site inspection. [Expert 2] is permitted entry to the location to conduct an inspection, but is not permitted to engage in testing to modify his opinion.

I considered that a win.  The expert could show up, walk around, and take pictures but could not conduct the testing he needed to “validate” his opinions.

[1] Rule 26(a)(2)(B)(i), (ii).
[2] Id. (citing 6 Moore’s Federal Practice § 26.131).