Supplemental Expert Reports, Part 3

Supplemental expert reports are another discovery area where I frequently encounter questionable practices. It was previously discussed twice, once in 2013 and again in 2014 but problems continue to abound. Time for the 2015 post.

In Allstate Ins. Co. v. Balle[1] the rebuttal expert disclosure date was May 16, 2013. The defendant disclosed Arthur Croft, PhD. D.C. as a retained rebuttal expert, but failed to disclose his report until June 4. The court denied a motion to strike the designation and Dr. Croft then disclosed two “supplemental” reports: one on August 14, 2013 and another on September 16, 2013. Dr. Croft was then deposed.

At the deposition, Dr. Croft produced his case file, which indicated that Defendants’ counsel did not formally retain Dr. Croft until May 16, 2013. When asked about when he began working on this case, Dr. Croft neither confirmed nor denied that he had not started working on this case until May 16, 2013. Additionally, when questioned about his August 14, 2013, supplemental report, Dr. Croft confirmed that he did not base it on information that became available after he completed his initial report; instead he was “continuing on with the work that [he] was doing.”

Oops. A second motion to strike Dr. Croft was filed.

The court first allowed Dr. Croft’s initial report to stand and then turned its attention to the supplemental reports. “[A]n expert’s duty to supplement under Rule 26(e), is not a right to supplement at will. 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.” “[S]upplementation is not appropriate simply because the expert did an inadequate or incomplete preparation.”

As to the first supplemental report, Dr. Croft “specifically testified that the First Supplemental Report was not based on any new materials. Dr. Croft stated that he was ‘just continuing on with the work that [he] was doing,’ and he agreed that he supplemented his initial report because he did not have time to formulate his additional opinions when he was making his initial report.” The same was true of the second supplemental report. “At no point in either supplement does Dr. Croft state that he relied on newly available information to create his supplemental reports.”

The result was predictable. “[I]t is apparent that Dr. Croft’s supplemental reports were produced as ‘supplements’ because Dr. Croft lacked time to complete his initial report, and not because Dr. Croft was provided with any new information. … Dr. Croft was neither correcting inaccuracies nor was he adding interstices to an incomplete report based on information that was not available at the time of the initial disclosure.”

Burger v. Excel Contrs., Inc.[2] also considered this issue. The initial expert disclosure deadline was February 19, 2013, and the rebuttal expert disclosure deadline was April 22, 2013. Plaintiff then disclosed two supplemental reports on March 19, 2013 and April 12, 2013 that the defendant moved to exclude. “Supplementation under Rule 26(e) does not create a loophole for a party to revise an initial report to its advantage.” Still, “[t]he time for supplementation is not limited to the discovery period,” and the last fathomable date to even argue a supplemental report is timely would be the last day for Rule 26(a)(3) pre-trial disclosures.

First, the court concluded the supplemental report was not based upon “new” information. “Because the supplemental information was available well before the Rule 26(a) disclosure deadline, the undersigned concludes that the supplements were improper under Rule 26(e).” However, the supplement was harmless.

The failure did not result in prejudice or surprise to Defendants. Defendants were aware of the diagnostic studies prior to the initial report and supplements. The supplements were filed well before the rebuttal expert disclosure deadline of April 22, 2013, meaning the rebuttal expert had ample time to review and rebut the supplements. Additionally, the supplements were provided well before the close of discovery and expert depositions.

[1] 2:10-cv-02205, 2013 U.S. Dist. LEXIS 154244, 2013 WL 5797848 (D. Nev. 2013).
[2] 2:12-cr-01634, 2013 U.S. Dist. LEXIS 153535, 2013 WL 5781724 (D. Nev. 2013).