United States District Court, W.D. Texas, Pecos Division
ORDER GRANTING MOTIONS TO STRIKE AND EXCLUDE
PLAINTIFFS' VOCATIONAL EXPERT EVIDENCE
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT are the  Opposed Motion to Strike and Exclude
Jacqueline Valencia, Carolina Valencia, and Viola G. Lopez
(Def. Mot. 1), and the  Opposed Motion to Strike and
Exclude Three New Supplemental Expert Reports Issued by
Jacqueline Valencia, Carolina Valencia, and Viola G. Lopez
(Def. Mot. 2). Both Motions were filed by the defendants and
have been fully briefed by the parties. The Motions are
considered together because they concern the same series of
events and present similar legal issues. After due
consideration, the Court finds that the expert reports should
be stricken and opinion testimony of the three named experts
should be disallowed.
The defendants move to strike and exclude the reports and
opinion testimony of Plaintiffs' designated vocational
experts, Jacqueline Valencia, Caroline Valencia and Viola G.
Lopez, pursuant to Fed.R.Civ.P. 37(c). Rule 37(c) provides:
"If a party fails to provide information ... as required
by Rule 26(a) or (e), the party is not allowed to use that
information ... to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified
or is harmless." Fed.R.Civ.P. 37(c)(1).
contend that although Plaintiffs timely provided what is
purported to be "expert reports" concerning
Plaintiffs Sanchez and Phillips from the vocational experts,
the reports violated Rule 26(a) because they contained
background information but did "not proffer any expert
opinions, whatsoever" as required by Rule
26(a)(2)(B)(i). (Def. Mot. 1, at 3, ECF No. 190). At the time
of the reports, vocational testing was pending, and the
experts wrote that they would supplement their reports once
updated medical information was received and vocational
testing was complete. (See PI. Design, of Experts Ex. H, at
1, 4, ECF No. 62-8; Ex. I, at 1, 4, ECF No. 62-9). The
initial reports contain only medical and vocation background
information for Phillips and Sanchez. (Id.).
the defendants filed this Motion, two months after the
plaintiffs' January 3, 2017, designation deadline had
passed, there had been no supplementation. However,
approximately one month after defendants' Motion, the
reports were "supplemented" to include expert
vocational opinions. (See PI. Resp. Ex. A, B, & C, ECF
Nos. 203-1, 203-2, & 203-3). Thus, the plaintiffs were
three months late in fully complying with Rule 26. The
defendants also object to introduction of the three
"supplemental" reports, requesting that the reports
be stricken for untimeliness. (Def. Mot 2, ECF No. 219).
26(a)(2)(B) requires that expert reports must contain the
following: (1) "a complete statement of all opinions the
witness will express and the basis and reasons for
them"; (2) "the facts or data considered by the
witness in forming them"; (3) "any exhibits that
will be used to summarize or support them"; (4)
"the witness's qualifications ..."; (5) a list
of cases in which the expert testified during the previous
four years; and (6) a statement of the compensation received
by the expert for his study and testimony. Fed.R.Civ.P.
26(a)(2)(B). The Court has carefully reviewed the initial
"reports" of these vocational experts and there is
no question that the initial vocational expert reports
tendered by the plaintiffs fail to meet the criteria of Rule
26(a). The "supplemental" reports are little more
than untimely expert reports and opinions in the guise of
supplemental reports. "The purpose of supplementary
disclosures is just that - to supplement. Such disclosures
are not intended to provide an extension of the expert
designation and report production deadline." Metro
Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320,
324 (5th Cir. 1998). Plaintiffs cannot fulfill their
disclosure obligations by providing sketchy, vague or
incomplete reports with no expert opinions. And providing
untimely experts reports labeled as "supplemental"
is insufficient. See Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir.
1996)(affirming a decision to exclude an expert report where
the initial report was merely an outline, although the report
was "supplemented" after the deadline); See
also Harmon v. Georgia Gulf Lake Charles L.L.C., 476
F.App'x 31 (5th Cir. 2012)
Rule 37(c), the presumptive sanction for failing to . . .
supply a required expert report or summary disclosures is to
exclude or limit the expert's testimony unless the
failure was substantially justified or harmless."
Honey-Love v. United States, 664 F.App'x 358,
362 (5th Cir. 2016). "The burden is on the party facing
sanctions to prove that its failure to comply with Rule 26(a)
was 'substantially justified or harmless.'"
Rembrandt Vision Techs., L.P. v. Johnson & Johnson
Vision Care, Inc., 725 F.3d 1377, 1381 (Fed. Cir. 2013)
(citing Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)); see
also R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d
262, 271-72 (6th Cir. 2010). The Court's decision on this
issue is subject to an abuse of discretion standard. See
Texas A&M Research Found, v. Magna Transp., Inc.,
338 F.3d 394, 402 (5th Cir. 2003).
evaluating whether a violation of rule 26 is harmless, "
district courts "look to four factors: (1) the
importance of the evidence; (2) the prejudice to the opposing
party of including the evidence; (3) the possibility of
curing such prejudice by granting a continuance; and (4) the
explanation for the party's failure to disclose."
Texas A&M Research Found., 338 F.3d at 402.
Importance of the Evidence
do not directly address this factor. It is nevertheless
apparent that the wholesale exclusion of vocational expert
evidence sought by Defendants would deprive Plaintiffs of any
opportunity to prove economic damages. Accordingly, this
factor weighs in favor of Plaintiffs, as the opinion evidence
that can only be presented through the vocational experts is
important to Plaintiffs' case.
Prejudice to Defendants
prejudice alleged by Defendants is their inability to counter
the opinions of Plaintiffs' vocational experts with their
own vocational expert. Defendants contend that with timely
notice of the Plaintiffs' expert vocational opinions,
they could have designated their own vocational expert to
counter them. Because Defendants' expert designation
deadline had passed by the time Plaintiffs provided them with
complete expert reports containing opinions, Defendants had
lost the opportunity. This factor weighs in favor of the
Reason for the Delay
state that the delay in supplementation of the report for
Phillips was necessary because Phillips had only recently
been given more permanent post-surgery restrictions. (PI.
Resp. 3-4, ECF No. 225). They state that Sanchez, also,
"has continual recommendations from his treating
physicians, " and that they promptly supplied this
information to the vocational experts. (Id., at 4).
Although this might explain why supplementation would have
been necessary, it does not explain why the vocational
experts did not provide initial opinions about the Plaintiffs
in a timely manner. The plaintiffs were two and a half years
post-accident by the time of their expert designation
deadline. Regardless of whether medical treatment was
ongoing, the ...