United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ORDER AND OPINION
CHRISTINE A. NOWAK, UNITED STATES MAGISTRATE JUDGE
before the Court are Defendant HME, Inc.'s
(“Defendant”) Supplemental Motion to Strike and
Exclude Testimony of Plaintiff's Expert Kerri Olsen [Dkt.
41] and Motion to Strike and Exclude Rebuttal Testimony of
Plaintiff's Expert Kerri Olsen [Dkt. 48] (collectively
the “Motions”). On April 12, 2017, the
undersigned conducted a hearing and heard oral argument from
both Plaintiff Glenn Ihde (“Plaintiff”) and
Defendant on the Motions [Dkt. 58]. After considering the
Motions, all relevant filings and evidence, as well as the
oral argument of counsel at hearing, the Court finds that
Defendant's Supplemental Motion to Strike and Exclude
Testimony of Plaintiff's Expert Kerri Olsen [Dkt. 41] is
DENIED, and that Defendant's Motion to Strike and Exclude
Rebuttal Testimony of Plaintiff's Expert Kerri Olsen
[Dkt. 48] is GRANTED IN PART AND DENIED IN PART.
filed the instant lawsuit seeking damages for breach of
contract, quantum meruit recovery of the market value of
services rendered, and attorneys' fees and costs [Dkts.
1; 31]. Plaintiff's claims arise out of Defendant's
alleged failure to pay Plaintiff for “steel detailing
services” he provided. Defendant is alleged to have
caused significant delays throughout the project and often
changed deadlines: Plaintiff in essence alleges that
performance under the contract became a moving target.
Plaintiff asserts Defendant paid only $28, 710.00 of
Plaintiff's first bill (for $31, 300.00) and has yet to
pay Plaintiff's second bill (for $27, 710.00). Plaintiff
claims $126, 280.00 remains unpaid. Plaintiff proffers Kerri
Olsen's expert report (the “Olsen Expert
Report”) [Dkt. 41, Ex. A] in support of his allegations
that Plaintiff substantially performed under the contract and
the value of Plaintiff's services. Plaintiff also
proffers Olsen's rebuttal report (“Rebuttal
Report”) [Dkt. 48, Ex. A] (collectively,
“Olsen's Reports”) directed at each of
Defendant's seven experts, namely Lyle Charles, Don
Grigg, Bobbi Fletchall, Dan Canda, Brian Aubert, Kevin Rake,
and John Haas.
moved to strike Olsen's Expert Report on December 12,
2016 [Dkt. 41] (“Motion to Strike Expert
Report”). Plaintiff filed a Response on December 22,
2016 [Dkt. 44], and Defendant a reply on March 31, 2017 [Dkt.
February 16, 2017, Defendant also moved to strike Olsen's
Rebuttal Report [Dkt. 48] (“Motion to Strike Rebuttal
Report”). Plaintiff filed a Response on March 6, 2017
[Dkt. 51], and on March 13, 2017, Defendant filed a Reply
[Dkt. 52]. Thereafter, on March 31, 2017, Plaintiff filed a
Surreply [Dkt. 55].
March 30, 2017, Defendant requested a hearing on the Motions
[see Dkt. 53]. The Court held the hearing
(“Hearing”) on April 12, 2017, at which each
Party proffered additional arguments and/or evidence [Dkt.
Olsen testified at Hearing regarding her methodology in
compiling the Expert Report and Rebuttal Report.
seeks to strike each of Olsen's Expert Report and her
Rebuttal Report in their entirety as well as any testimony
she may give at trial, arguing the Reports do not comply with
Federal Rule of Civil Procedure 26 and that, even if they
did, the Court should strike the Reports because Olsen's
opinions do not pass muster under Federal Rule of Evidence
702. Defendant argues Olsen's Reports and potential
testimony lack basis in evidence, are conclusory and
speculative, and provide no rationale based on any
identifiable methodology. Defendant also asserts the evidence
on which Olsen does rely, namely three depositions, does not
support her conclusions, and that she improperly attempts to
opine as to subjects for which she has no expertise.
Plaintiff contends in response that Olsen bases her reports
and potential testimony on her review of the contract
documents produced. Plaintiff further asserts Olsen's
curriculum vitae demonstrates her qualifications to opine on
questions of document control and/or project management in
steel detailing and fabricating cases, given her years of
experience and scholarship in those fields. Plaintiff claims
Olsen's Reports suffice to permit her to opine as to (1)
whether Plaintiff substantially performed under the contracts
at issue and (2) the value of Plaintiff's services as
rendered. Defendant counters that, even if Olsen's
Reports were limited to these two issues, Olsen still fails
to sufficiently connect the dots between her purported
methodology, the facts, and her conclusions.
Federal Rules of Civil Procedure set forth the procedures
litigants must follow in designating expert witnesses. Rule
26(a)(2)(B) provides in pertinent part:
Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report- prepared and signed
by the witness-if the witness is one retained or specially
employed to provide expert testimony in the case . . . The
report must contain: (i) a complete statement of all opinions
the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fifth Circuit, an expert report must be “detailed and
complete” when submitted under Rule 26(a)(2)(B) to
“avoid the disclosure of ‘sketchy and vague'
expert information.” Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571
(5th Cir. 1996). Expert reports that do not provide the basis
and reasons for the stated opinions, or that refer to the
basis for the opinions only in vague terms, are insufficient
under Rule 26(a)(2)(B). See Id. “To satisfy
Federal Rule of Civil Procedure 26(a)(2)(B), the report must
provide the substantive rationale in detail with respect to
the basis and reasons for the proffered opinions. It must
explain factually why and how the witness has reached
them.” Hilt v. SFC Inc., 170 F.R.D. 182, 185
(D. Kan. 1997), cited favorably in Broxterman v.
State Farm Lloyds, No. 4:14-CV-661, 2015 WL 11072132, at
*2 (E.D. Tex. Oct. 19, 2015) (Mazzant, J.). This requirement
allows parties to prepare effectively for cross examination
of expert witnesses and, if necessary, to arrange for
testimony by additional expert witnesses. Fed.R.Civ.P.
26(a)(2)(B) advisory committee's note to 1993 amendments.
Rule 37(c), “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial
unless the failure was substantially justified or
harmless.” See Torres v. City of San Antonio,
No. SA:14-CV-555-DAE, 2014 WL 7339122, at *1 (W.D. Tex. Dec.
23, 2014). Indeed, the “sanction of exclusion is
automatic and mandatory unless the sanctioned party can show
that its violation of Rule 26(a) was either justified or
harmless.” Id. But see Fed. R. Civ. P.
37(c)(1) (providing the district court authority to order
alternative sanctions in addition to or instead of exclusion,
such as costs or attorney's fees). “The
determination of whether a Rule 26(a) violation is justified
or harmless is entrusted to the broad discretion of the
district court.” Id. When evaluating whether a
violation of Rule 26 is harmless for purposes of Rule
37(c)(1), the court looks to four factors: (1) the
explanation for the failure to disclose; (2) the importance
of the testimony or evidence; (3) potential prejudice to the
opposing party in allowing the testimony or evidence; and (4)
the possibility of a continuance to cure such prejudice.
Id.; see also Hamburger v. State Farm Mut. Auto
Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). In
conducting this analysis, the Court remains mindful that Rule
26 exists “to prevent unfair surprise at trial and to
permit the opposing party to prepare for rebuttal reports, to
depose the expert in advance of trial, and to prepare for
cross-examination.” Payne v. Brayton, No.
4:15-CV-809, 2017 WL 194210, at *3 (E.D. Tex. Jan. 18, 2017).
a Court determines an expert's report meets the Rule
26(a) requirements, the Court has an obligation to act as
“gatekeeper” to ensure testimony from a qualified
expert is both reliable and relevant. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993);
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44
(5th Cir. 2002). The proponent must establish relevance, by
“demonstrat[ing] that the expert's reasoning or
methodology can be properly applied to the facts in issue[,
]” and reliability, by showing the “expert
opinion . . . [is] more than unsupported speculation or
subjective belief.” Johnson v. Arkema, Inc.,
685 F.3d 452, 459 (5th Cir. 2012). The proponent must make
this showing by preponderance of the evidence. Moore v.
Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
A “lack of reliable support may render [expert opinion]
more prejudicial than probative” in certain
circumstances. Viterbo v. Dow Chem. Co., 826 F.2d
420, 422 (5th Cir. 1987) (citing Barrel of Fun, Inc. v.
State Farm Fire & Cas. Co., 739 F.2d 1028, 1035 (5th
Cir. 1984)). Importantly, however, the Court shall not judge
the expert's credibility, as “the trial court's
role as gatekeeper is not intended to serve as a replacement
for the adversarial system.” United States v. 14.38
Acres of Land Situated in Leflore Cty., 80 F.3d 1074,
1078 (5th Cir. 1996). But a court must determine a witness
“is qualified as an expert by knowledge, skill,
experience, training, or education” as to the areas for
which the party proffers the expert's testimony.
objects to each of Olsen's Expert Report [Dkt. 41, Ex. 2]
and her Rebuttal Report [Dkt.48, Ex. 1]. Defendant challenges
the Expert Report (1) for failure to comply with Rule 26(a)
requirements and (2) for failure to comply with the federal
evidentiary requirement of reliability [Dkt. 41]. Defendant
challenges the Rebuttal Report for failure to comply with
federal evidentiary requirement of reliability and, in some