The plaintiff in this lawsuit was allegedly injured when an elevator did not level properly. Plaintiff sued the Otis Elevator Company and, after discovery, Otis moved to preclude the plaintiff’s expert from testifying. The expert has opined that there was a defect in the elevator and that Otis should have noticed the defect and correct it. Defendant moved to preclude the opinion on the ground that the expert did not fully disclose his rationale or reasoning.
The court rejected the challenge to the expert:
Rule 26 is intended “to prevent a party from `sandbagging’ an opposing party with new evidence.” Conte v. Newsday, Inc., No. 06-Civ.-4859 (JFB) (ETB), 2011 WL 2671216, at *4 (E.D.N.Y. July 7, 2011) (citation omitted). “A district court has wide discretion to impose sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37” and, in reviewing a district court’s exercise of that discretion, the Second Circuit considers: “`(1) the party’s explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.'” Design Strategy, Inc. v. Davis, 469 F.3d 284, 294, 296 (2d Cir. 2006)(quoting Patterson v. Balsamico, 440 F.3d 104 (2d Cir. 2006)) (internal brackets omitted). “[A]lthough a `bad-faith’ violation of the Rule 26 is not required in order to exclude evidence pursuant to Rule 37, [such a violation] can be taken into account as part of the party’s explanation for its failure to comply.” Id. at 296 (emphasis omitted). “[C]ourts in this Circuit have recognized that preclusion is a `harsh sanction,'” and it remains a “discretionary remedy even if “`the trial court finds that there is no substantial justification [for the party’s conduct] and the failure to disclose is not harmless.'” Conte, 2011 WL 2671216, at *1 (quoting Design Strategy, Inc., 469 F.3d at 297) (citations omitted). Preclusion for violation of Rule 26(a) “should be distinguished from the question of” the admissibility of expert reports under Federal Rule of Evidence 702 (“Rule 702”): “Whereas Rule 26(a) guards against the presentation of sketchy and vague expert reports that provide little guidance to the opposing party as to an expert’s testimony, Rule 702 guards against the presentation of insufficiently reliable evidence to the finder of fact.” Id. at *4.
Defendant has not sufficiently demonstrated that Mr. Carrajat’s supplemental expert report and his conduct violate Rule 26 nor that sanctions—especially the “harsh sanction” of preclusion—are warranted here. Defendant has not demonstrated that Plaintiff has withheld factual or theoretical underpinnings of Mr. Carrajat’s expert testimony. Rather, it is apparent from the reports and from the extensive deposition testimony that Defendant elicited even before production of Mr. Carrajat’s supplemental report that Mr. Carrajat relies on his background knowledge of the equipment in question, performed an inspection of the equipment, relies on Plaintiff’s testimony that the wheels of the pallet jack were obstructed by misleveling of the cab, and draws inferences (including inferences as to missing maintenance documentation) from the evidence that Defendant has produced concerning the maintenance of the Subject Elevator. This record does not demonstrate that Plaintiff has withheld information as to Mr. Carrajat’s opinions or the facts or data Mr. Carrajat considered in forming them. Defendant’s issues appear to concern the weight or evidentiary quality of Mr. Carrajat’s testimony. At this point in this action, the Defendant has sufficient “guidance” as to Mr. Carrajat’s testimony, and the Defendant has not demonstrated that it suffered prejudice “as a result of having to prepare to meet” whatever “new testimony” emerged at Mr. Carrajat’s deposition or otherwise. Cf. Design Strategy, Inc., 469 F.3d at 296(holding that district court properly took “severe” prejudice into account in finding that Rule 37 sanctions were warranted).
Accordingly, Defendant’s motion to preclude the testimony of Mr. Carrajat pursuant to Federal Rules of Civil Procedure 26 and 37 is denied.
The court was of the view that the challenge to the expert’s testimony was related to the weight and credibility of the testimony. Those are determinations for the jury. Litigation about experts remains a huge issue in the law and can have enormous implications for plaintiffs bringing injury claims. Had the expert in this case been barred, plaintiff would have lost the case on summary judgment.