Failure to Plan Gets Supplemental Report Excluded

I once discussed discovery problems that arose in a dog bite case that apparently threatened national security. That same case generated a second discovery decision, and a bit more information about the case. The plaintiff was apparently in the airport “with her ‘small emotional support animal (‘ESA’), a dog named Chief.’”[1] Then the TSA dog somehow escaped his harness and knocked her over (she described it as an attack).  Apparently Chief was injured too.[2]

Both parties concluded expert testimony as to liability was necessary.  They obtained an extension, making initial expert disclosures due July 22, 2016.  On July 21, “Plaintiff filed a motion to compel discovery responses and stay the discovery period. Plaintiff argued that she was not able to disclose an expert witness on liability until she obtained written discovery responses from Defendant.”  The motion was late and should have simply been denied, but the court considered it anyway.  The motion was partially granted, as discussed in the prior post, and Plaintiff’s new deadline to disclose was January 25, 2017.  She met that deadline and disclosed a report.  The deadline was not extended again.

For reasons that are not stated, the TSA dog handler was not deposed until June 1, 2017.  Then on June 23, 2017, Plaintiff served a supplemental report from her liability expert that relied upon that testimony.  The government moved to exclude it.

Several prior posts discuss the parameters for supplemental expert reports.  Here, the court described them as follows:

The parties should conduct all necessary discovery prior to the expert witness disclosure deadline so that the expert’s report is complete and will not require supplementation based on further discovery. In some cases, however, the initial period of discovery may not be sufficient to obtain all of the information that the expert needs to review in rendering his opinion. When this occurs, a party may seek an extension of the discovery period and the expert witness disclosure deadlines.

The government and court noted the supplemental report was based entirely upon the TSA dog handler’s deposition testimony.  Although discovery had been extended, “[n]otably, Plaintiff did not state that she needed to take [his] deposition prior to the disclosure of her expert’s report.”  Even after the report was disclosed, “[n]or did Plaintiff promptly take [his] deposition.”  The supplemental report was struck.  “The new opinion expressed in Mr. Tritschler’s supplemental reported must be stricken because Plaintiff failed to diligently pursue discovery before or after filing the motion to extend the expert disclosure deadline on July 21, 2016.”

I once had a six part series about potential problems that may arise when parties fail to plan for discovery, including expert witness disclosures.  This case is another practical example of it.

[1] McSwain v. United States, No. 2:15-cv-1321, 2017 U.S. Dist. LEXIS 146257 (D. Nev. Sep. 11, 2017).  I’ll save my opinions about the phrase “emotional support animal” for another time.

[2] Dog = chattel.  Dog & car both = chattel.  If car is “injured,” car is repaired if repairs are less than car’s value.  Car is totaled if repairs cost more than car’s value.  If dog’s value = $250 and vet bills > $250, does Owner recover only $250?  How is a dog’s market value proven?  So many inane questions, so little time.