Lindner v. Meadow Gold Dairies, Inc.

United States District Court for the District of Hawaii · Contracts

ContractsExpert disclosuresRebuttal reportsSupplemental reportsSanctionsRule 26Rule 26(a)(2)(C)Rule 26(e)

Facts

Meadow Gold leased premises later acquired by Lindner, and the district judge had already found the lease terminated as of December 31, 2000. Lindner alleged that Meadow Gold breached the lease by maintaining a cow graveyard on the property and by storing, using, and disposing of hazardous materials there. Under the scheduling orders, plaintiff disclosed initial experts in April 2007, then served June 2007 and October 2007 reports labeled as rebuttal or supplemental reports, including reports from O'Bryne, Glanville, Le Roux, Djou, and Hallstrom. Southern Foods argued that many of those later reports were not true rebuttal or supplementation, but instead new expert opinions and analyses that should have been disclosed earlier.

Issue

Whether the plaintiff's June 2007 and October 2007 expert reports were proper rebuttal reports under Rule 26(a)(2)(C) or proper supplemental reports under Rule 26(e), and if not, whether they should be stricken and excluded under Rule 37(c)(1). The court also considered whether the scheduling order should be amended to save the June 2007 disclosures.

Rule

A rebuttal expert report under Rule 26(a)(2)(C) must be intended solely to contradict or rebut evidence on the same subject matter identified by an opposing expert. A supplemental expert report under Rule 26(e) may correct or complete an earlier report when the prior disclosure was materially incomplete or incorrect, but it may not be used to add new opinions, deepen prior opinions, or disclose work that could have been done before the expert deadline. If a party fails to disclose expert information as required by Rule 26(a) or (e), Rule 37(c)(1) bars use of that information unless the failure was substantially justified or harmless.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a commercial lease dispute in Phoenix, landlord Nora Patel alleges that tenant Canyon Mesa Produce left industrial brine in underground pits. Nora timely disclosed an environmental chemist who said cleanup would cost $900,000. After the tenant disclosed its hydrogeologist, who opined that the pits could not affect groundwater because the subsurface clay blocked migration, Nora served a rebuttal report from engineer Daniel Mays criticizing that migration analysis and explaining why contaminants could still reach groundwater through fractured zones.

Is Daniel's report most likely a proper rebuttal disclosure?

Explanation. Rule 26(a)(2)(C) permits rebuttal evidence intended solely to contradict or rebut evidence on the same subject matter identified by the opposing expert. Here, Daniel directly addresses the tenant expert's groundwater-migration opinion on the same subject matter, so the report is proper rebuttal. The court rejected the ideas that rebuttal is barred merely because the offering party bears the burden of proof, that such testimony can never address contamination issues, or that the report must mention the opposing expert by name.