UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
THE ATLANTA CHANNEL, INC., : : Plaintiff, : Civil Action No.: 15-1823 (RC) : v. : Re Document No.: 110, 120 : HENRY A. SOLOMON, et al., : : Defendants. : MEMORANDUM OPINION
GRANTING IN PART DEFENDANT HENRY A. SOLOMON’S MOTION TO STRIKE; GRANTING IN PART THE GARVEY DEFENDANTS’ MOTION TO STRIKE
I. INTRODUCTION
This legal malpractice case again comes before this Court on two motions to strike
respectively filed by defendant Henry A. Solomon and defendants Garvey Schubert Barer and
Melodie Virtue (“the Garvey Defendants”). In support of its legal malpractice case against
Defendants, Plaintiff The Atlanta Channel, Inc. (“ACI”) designated two expert witnesses
specialized in the field of legal ethics, George W. Conk and Tom W. Davidson. Solomon has
now moved to strike Davidson’s expert report and to exclude his testimony, arguing that
Davidson was untimely disclosed as an expert witness. And the Garvey Defendants have moved
to strike Conk on a number of grounds, including that his proposed testimony is improper
because it entirely consists of inadmissible legal conclusions. After reviewing the parties’
arguments, the Court grants in part and denies in part both motions.
II. BACKGROUND
This case has a lengthy history and this Court has already summarized its factual
background on several occasions in past opinions. See, e.g., Beach TV Props., Inc. v. Solomon (“Beach TV II”), 324 F. Supp. 3d 115, 118 (D.D.C. 2018); Beach TV Props., Inc. v. Solomon
(“Beach TV I”), No. 15-1823 (RC), 2016 WL 6068806, at *1–4 (D.D.C. Oct. 14, 2016). The
Court assumes familiarity with those prior opinions and briefly outlines only the facts most
relevant to the pending motions to strike.
On December 29, 1999, Solomon submitted a statement of eligibility for a Class A
license to the Federal Communications Commission (“FCC”) on behalf of his then-client, ACI.
See Beach TV II, 324 F. Supp. 3d at 118. The form was improperly filled, and ACI alleges that it
was dismissed by the FCC as a result. See id. ACI alleges that it was thereby unable to obtain a
Class A license for a television station it owned, at a loss of at least $25,000,000. See id.
Solomon applied for review of the dismissal before the FCC in 2000. See id. at 119. The same
year, he also joined the firm of Garvey Schubert Barer. See id. Solomon retired from Garvey
Schubert Barer in 2010, while the application for review was still pending, and his work with
ACI was taken over by Virtue, another attorney at Garvey Schubert Barer. See id. Virtue began
working specifically on ACI’s pending application for review in early 2012. See id. The FCC
ultimately denied the application for review on November 9, 2012, and the D.C. Circuit upheld
that denial in September 2015. See id.
ACI filed suit on October 26, 2015. See Compl., ECF No. 1. ACI’s first amended
complaint, filed on February 2, 2016, included claims for legal malpractice against, inter alia,
both Solomon and Garvey Schubert Barer. See First Am. Compl. ¶¶ 122–37, ECF No. 21. But
on October 14, 2016, this Court dismissed all but one of those claims, leaving only one
remaining live claim against Solomon. See Beach TV I, 2016 WL 6068806, at *1. ACI
proceeded to discovery on that claim, with the Court entering a Scheduling Order on October 31,
2016 setting, inter alia, a deadline for the submission of ACI’s expert disclosures and reports
2 relating to Solomon’s liability on February 28, 2017. See Scheduling Order (Oct. 31, 2016),
ECF No. 58. ACI disclosed Conk as a liability expert within that deadline, see Def. Henry A.
Solomon’s Mem. Supp. Mot. Strike (“Solomon’s Mem. Supp.”) 2, ECF No. 110-1, and ACI and
Solomon completed discovery as to liability by early 2018, see Joint Status Report 2, ECF No.
85 (“Plaintiff ACI and Defendant Solomon have completed discovery regarding liability issues
as to each other.”). The Court then set a deadline for ACI’s submission of its expert reports on
damages due January 31, 2019. See Scheduling Order (Oct. 4, 2018), ECF No. 101.
In the meantime, ACI filed a second amended complaint including new claims against
Virtue and Garvey Schubert Barer on June 1, 2017. See Second Am. Compl., ECF No. 69. In
the second amended complaint, ACI alleges that Virtue committed malpractice by failing to
make a number of disclosures to it upon taking over the FCC license matter in 2012 (the so-
called “Virtue obligations”). See id. ¶¶ 59–60, 80–84. And ACI alleges that Garvey Schubert
Barer is liable for her malpractice as her employer. See id. ¶ 87. ACI’s claims against the
Garvey Defendants proceeded to discovery on a delayed schedule from its claim against
Solomon, with the Court setting a deadline for the submission of ACI’s expert reports regarding
the Garvey Defendants’ liability on January 31, 2019. See Scheduling Order (Oct. 4, 2018).
On September 18, 2018, ACI informed the Garvey Defendants that it intended to use
Conk as a liability expert not just on its claim against Solomon, but also on its claims against
them. See Pl.’s Mem. Opp’n Garvey Defs.’ Mot. Strike (“Pl.’s Garvey Defs. Opp’n”) 1, EFC
No. 125. And on January 17, 2019, ACI disclosed a new expert to Solomon, Tom W. Davidson.
See Solomon’s Mem. Supp. 1–2. Solomon has now moved to strike Davidson as an untimely
disclosed liability expert, see Def. Henry A. Solomon’s Mot. Strike, ECF No. 110, while the
Garvey Defendants move to strike Conk on a number of grounds, see Garvey Defs.’ Mot. Strike,
3 ECF No. 120.
III. ANALYSIS
Solomon has moved to strike Davidson as an expert witness, arguing that striking his
testimony is an appropriate sanction for ACI’s untimely disclosure. See Solomon’s Mem. Supp.
4. And the Garvey Defendants move to strike Conk on four separate grounds: that his testimony
consists entirely of legal conclusions, that he has no knowledge of the appropriate standard of
care, that he lacks knowledge of the facts of the case, and that he is not a qualified expert witness
under Federal Rule of Evidence 702. See Garvey Defs.’ Mem. Supp. Mot. Strike 5, ECF No.
120-1. The Court addresses each motion in turn. It finds Solomon’s argument as to Davidson
persuasive only in part, because only part of Davidson’s report is directed at liability issues. And
while the Court agrees that at least some of Conk’s opinions, as proffered in the expert report,
are inadmissible, it does not find his reliance on the D.C. Rules of Professional Conduct and
other legal authorities on ethics to be per se improper, nor is it convinced by the Garvey
Defendants’ other arguments for striking his testimony in its entirety. The Court therefore grants
both motions only in part.
A. The Court Grants in Part Solomon’s Motion to Strike Davidson as Untimely Disclosed
The Court first reviews Solomon’s motion to strike Tom W. Davidson as an expert
witness. Solomon argues that Davidson should be stricken as an expert because his disclosure as
a liability expert is untimely. See Solomon Mem. Supp. 2–4. The Court briefly discusses the
standard for exclusion of testimony not properly disclosed, before going over the parties’
arguments. The Court agrees with Solomon that at least some aspects of Davidson’s proffered
testimony relates to liability issues and is untimely. However, it also finds that some of
4 Davidson’s expert opinions address damages issues and are therefore timely disclosed. The
Court accordingly strikes Davidson as an expert witness only as to his opinions on liability.
Federal Rule of Civil Procedure 26 requires parties to disclose the identity their expert
witnesses, see Fed. R. Civ. P. 26(2)(A), as well as provide, for each expert, an expert report
containing “a complete statement of all opinions the witness will express and the basis and
reasons for them; the facts or data considered by the witness in forming them; [and] any exhibits
that will be used to summarize or support [the opinions],” Fed. R. Civ. P. 26(a)(2)(B). And
under Rule 26(a)(2)(D), such a report must be disclosed “at the times and in the sequence that the
court orders.” Fed. R. Civ. P. 26(a)(2)(D). Pursuant to Rule 37(c), failure to disclose
information as required by Rule 26(a) results in the party not being allowed to use that
information, “unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). “Rule 37(c)(1) is a self-executing sanction[.]” Norden v. Samper, 544 F. Supp. 2d 43,
49 (D.D.C. 2008). “The proponent of the evidence bears the burden of showing that the failure
to disclose the evidence ‘was substantially justified or is harmless.’” Moore v. Napolitano, 926
F. Supp. 2d 8, 25 n.12 (D.D.C. 2013) (quoting Fed. R. Civ. P. 37(c)).
Here, ACI disclosed Davidson as an expert in January 2019, before the deadline for
disclosure of damages experts but well after the deadline for disclosure of liability experts.
Solomon argues that Davidson is a liability expert, see Solomon’s Mem. Supp. 2, while ACI
contends that Davidson’s report addresses three issues, all of which relate to ACI’s damages:
foreseeability of the harm caused by Solomon’s alleged malpractice, contributory negligence by
ACI, and Solomon’s duty of care, see Pl.’s Mem. Opp’n Henry A. Solomon Mot. Strike (“Pl.’s
Solomon Opp’n”) 1–3, ECF No. 111. The Court agrees with ACI as to foreseeability, but not as
to the other issues on which Davidson proffers his expert opinion. Foreseeability here touches
5 upon “the extent of the damage Mr. Solomon’s alleged negligence proximately caused,” Beach
TV II, 324 F. Supp. 3d at 121, and is a therefore a damages issue, on which Davidson was timely
disclosed. On the other hand, the Court cannot agree that either contributory negligence or
Solomon’s duty of care are issues that “straddle[] both ‘damages’ and ‘liability.’” Pl.’s Solomon
Opp’n 2. A cursory examination of Davidson’s report indicates that, aside from the
foreseeability of the damages caused by Solomon’s alleged malpractice, it focuses entirely on
what standard of care applied to Solomon and whether Solomon complied with that standard.
See generally Expert Witness Statement of Tom W. Davidson, ECF No. 110-2. This is a pure
liability issue on which Davidson was untimely disclosed.
Having found that Davidson’s disclosure as an expert witness was untimely, the Court
must next determine whether the failure to disclose “was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1). Here, the Court finds that ACI has failed to show either exception to a
Rule 37 sanction applies. ACI appears to first argue that the late disclosure of an expert
addressing contributory negligence was substantially justified because Solomon only explained
the basis for his contributory negligence defense “after the close of Liability Discovery.” Pl.’s
Solomon Opp’n 2. But, as Solomon points out, he raised his contributory negligence defense in
his answer to ACI’s first amended complaint in on January 12, 2016. See Def. Henry A.
Solomon’s Answer to First Am. Compl. 7, ECF No. 17. He did so again in his answer to the
second amended complaint on June 15, 2017. See Def. Henry A. Solomon’s Answer to Second
Am. Compl. 13, ECF No. 70. And he filed the document that ACI argues “first asserted the
factual and legal basis for his contributory negligence defense,” Pl.’s Solomon Opp’n 2, in
September 2017, almost two years ago. ACI has therefore not shown that it was substantially
6 justified in waiting until January 2019 to present evidence regarding Solomon’s contributory
negligence defense.
Neither is the late disclosure of Davidson as an expert witness harmless. While it may be
true that discovery as to damages only closed recently, liability discovery had been closed for
well over a year and a half when ACI first produced Davidson’s report. Reopening liability
discovery to allow for Davidson’s deposition—and the possible submission of a rebuttal expert
witness report, triggering yet more discovery—will undoubtedly cause the parties significant
costs and further delay in a case that has now been pending for close to five years. Finding that
the disclosure was not harmless, the Court therefore concludes that Davidson’s untimely
opinions must be excluded. It accordingly grants Solomon’s motion in part and strikes
Davidson’s testimony except as it relates to the foreseeability of the harm caused by Solomon’s
alleged negligence.
B. The Court Grants in Part the Motion to Strike Conk’s Testimony
Next, the Court addresses the Garvey Defendants’ motion to strike George Conk as an
expert witness. The Garvey Defendants make four arguments for excluding Conk’s testimony,
contending that 1) Conk solely relies on legal authorities for his opinions, which are inadmissible
legal conclusions, 2) Conk is not familiar with the applicable standard of care, 3) Conk does not
know the pertinent facts of the case, and finally 4) Conk is unqualified under Federal Rule of
Evidence 702 because he “disregarded his duties” as an expert witness. Garvey Defs.’ Mem.
Supp. 5. The Court agrees in part as to the first argument, but disagrees as to the rest. It
accordingly only grants in part the motion to strike.
7 1. Only Some of Conk’s Opinions Are Inadmissible Legal Conclusions
The Court first reviews the Garvey Defendants’ arguments that Conk’s testimony should
be excluded in its entirety as solely consisting of legal opinions. The Court is not entirely
convinced, and it accordingly only grants in part the motion to strike on that ground.
The Garvey Defendants are correct that experts are generally prohibited from opining on
legal issues. Federal Rule of Evidence 702 provides that an expert “may testify in the form of an
opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid.
702. And courts have generally found that when an expert’s testimony “‘consists of legal
conclusions,’ it ‘cannot properly assist the trier of fact’” and is therefore not admissible.
Convertino v. U.S. Dep’t of Justice, 772 F. Supp. 2d 10, 12 (D.D.C. 2010) (quoting Burkhart v.
Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1211 (D.C. Cir. 1997)). This is because
“[l]egal conclusions . . . ‘intrude upon the duties of, and effectively substitute for the judgment
of, the trier of fact and the responsibility of the Court to instruct the trier of fact on the law.’” Id.
(quoting United States ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94, 98 (D.D.C. 2002)).
However, this general rule becomes much more complex in the context of legal
malpractice suits. “When an expert witness is required, the expert must ‘clearly articulate and
reference a standard of care by which the defendant’s actions can be measured.’” Robinson v.
Wash. Metro. Area Transit Auth., 774 F.3d 33, 39 (D.C. Cir. 2014) (quoting Varner v. Dist. of
Columbia, 891 A.2d 260, 269 (D.C. 2006)). And when that defendant is a lawyer, that standard
of care necessarily implicates legal issues that would not arise in a typical negligence case. See,
e.g., Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100–01 (1st Cir. 1997) (“[T]here may be
particular areas of law, such as legal malpractice, where expert testimony on legal matters is
8 admissible where it would normally be excluded.”). In particular, given that lawyers are subject
to a number of ethical duties separate from their duty of care to their clients, courts are divided as
to whether those ethical duties can constitute evidence of the standard of care—and whether
expert witnesses should be able to refer to ethical rules when testifying to the standard of care. 1
Most courts “allow testimony on ethical violations as evidence of an attorney’s failure to comply
with the legal standard of care,” Michael P. Ambrosio & Denis F. McLaughlin, The Use of
Expert Witnesses in Establishing Liability in Legal Malpractice Cases, 61 Temp. L. Rev. 1351,
1362 (1988) (citing cases), often under the rationale that “[a] legal expert’s use of [ethical rules]
in determining the standard of care required in a legal malpractice case is not unlike the use of
practice codes in other negligence contexts,” Waldman v. Levine, 544 A.2d 683, 691 (D.C.
1988).
Particularly relevant here, the District of Columbia considers ethical rules applicable to
D.C. attorneys to be relevant to determining the appropriate standard of case in a legal
malpractice case. See Waldman, 544 A.2d at 691 (noting that “[i]t is an obvious proposition that
the [D.C.] Code of Professional Conduct provides a gauge by which to determine the
competency of the Bar” and finding appropriate an expert’s “use of the Code in determining the
standard of care required in a legal malpractice case”); see also Williams v. Mordkofsky, 901
F.2d 158, 163 (D.C. Cir. 1990) (“While the Model Code [of Professional Responsibility] does
not provide for a direct private malpractice action, violations of the Code certainly constitute
evidence in an action at common law” (citing Waldman, 544 A.2d at 690–91)). In addition,
1 The issue has generated some amount of academic scholarship. See, e.g., David S. Caudill, The Roles of Attorneys as Courtroom Experts: Revisiting the Conventional Limitations and Their Exceptions, 2 St. Mary’s J. on Legal Malpractice & Ethics 136 (2012); Wilburn Brewer, Jr., Expert Witness Testimony in Legal Malpractice Cases, 45 S.C. L. Rev. 727 (1994).
9 courts both in this circuit and in others have allowed experts to testify as to violations of ethical
rules in legal malpractice cases. See, e.g., Hendry v. Pelland, 73 F.3d 397, 401 (D.C. Cir. 1996)
(discussing expert testimony that defendant had violated D.C. disciplinary rule in breach of
fiduciary duty case); Miami Int’l. Realty Co. v. Paynter, 841 F.2d 348, 353 (10th Cir. 1988)
(rejecting argument that lower court erroneously admitted expert testimony as to lawyer’s failure
to comply with Colorado Code of Professional Responsibility in legal malpractice case);
Jacobsen v. Oliver, 555 F. Supp. 2d 72, 86–87 (D.D.C. 2008) (evaluating expert opinion that
attorney’s fee arrangement violated D.C. Rule of Professional Conduct 1.5 in breach of fiduciary
duty case); Smith v. Haden, 872 F. Supp. 1040, 1045 n.2 (D.D.C. 1994) (rejecting Defendant’s
objection to legal expert’s use of D.C. disciplinary rule in determining applicable standard of
care in legal malpractice case).
Here, the Garvey Defendants contend that Conk’s proposed testimony is inadmissible
because his expert reports “are essentially memoranda of law” that “rely on a variety of legal
authorities,” including the D.C. Rules of Professional Conduct and ethics opinions from D.C. and
other jurisdictions. Garvey Defs.’ Mem. Supp. 6. The Court is for the most part unconvinced.
As discussed above, the District of Columbia considers a lawyer’s ethical duties to be relevant to
determining the appropriate standard of care. See Waldman, 544 A.2d at 691. And federal
courts have generally allowed experts to testify to violations of a lawyer’s ethical duties, as long
as the violation of ethical rules is not presented as de facto negligence. See, e.g., Paynter, 841
F.2d at 353. The Court therefore cannot find that Conk’s reliance on legal authorities regarding a
D.C. lawyer’s ethical duties to help determine the Garvey Defendants’ standard of care was
improper.
10 The Court does agree, however, that Conk improperly uses the legal authorities he relies
on for his proffered opinions in much of his report. The D.C. Court of Appeals and the D.C.
Circuit have made clear that while a lawyer’s ethical responsibilities, and breach thereof, can be
used as evidence in a legal malpractice action, violations of the D.C. Rules of Professional
Conduct “does not provide for a direct malpractice action.” Williams, 901 F.2d at 163 (citing
Waldman, 544 A.2d at 690–91). In Paynter, the Tenth Circuit similarly noted that a legal
expert’s testimony regarding the Colorado Code of Professional Responsibility was not improper
as long as the code “was not presented as having the force and effect of a law nor that deviations
from it constituted negligence per se.” 841 F.2d at 348. Yet that is what Conk appears to do in
both his initial report and his rebuttals to both Solomon and the Garvey Defendants’ experts,
conflating the D.C. Code of Professional Responsibility with the standard of care applicable to
both sets of defendants. See, e.g., Report of George W. Conk, Esq. (“Conk Report”) 5, ECF No.
120-3 (“Solomon had a duty to inform The Atlanta Channel about any outstanding problems
presenting a ‘significant risk’ to the client at the time of his retirement.” (quoting D.C. Rules of
Prof’l Conduct 1.7(a)(2))); First Rebuttal Report of George W. Conk, Esq. (“Conk First Rebuttal
Report”) 2–3, ECF No. 120-4 (noting that Garvey Schubert Barer and Virtue failed to comply
with their duty to inform ACI of “the material risks and reasonably available alternatives to the
proposed course of conduct” they were suggesting (quoting D.C. Rules of Prof’l Conduct
1.0(e))). The Court will therefore strike Conk’s testimony to the extent he equates the Garvey
Defendants’ breach of their ethical duties with a breach of the standard of care they owed ACI.
Conk will be permitted to testify to the ethical duties applicable to the Garvey Defendants, and
the breach thereof, only to the extent he explains how those ethical responsibilities framed his
11 determination of what the applicable standard of care was for an attorney in the Garvey
Defendants’ circumstances.
2. Conk’s Testimony Is Not Otherwise Inadmissible
Next, the Court briefly reviews the Garvey Defendants’ three other arguments for striking
Conk’s testimony: that Conk is not familiar with the applicable standard of care, failed to review
the relevant facts of the case before issuing his opinion, and is unqualified because he
disregarded his duties as a legal expert. See Garvey Defs.’ Mem. Supp. 5. The Court disagrees.
First, the Garvey Defendants have not shown that Conk is not familiar with the applicable
standard of care. The Garvey Defendants offer a simple argument for striking Conk: an expert
witness in a legal malpractice case can only testify about the standard of care applicable to
“competent lawyers under circumstances similar to those at issue.” Defs.’ Mem. Supp. 9 (citing
Jacobsen, 555 F. Supp. 2d at 72; Iacangelo v. Georgetown Univ., 560 F. Supp. 2d 53 (D.D.C.
2008)). Here, they argue, this standard would require an expert witness who is familiar with
circumstances where the exact same situation arose, see id. at 10, and who is also familiar with
how a “competent FCC lawyer (such as Ms. Virtue)” would react under such circumstances, id.
at 11 (emphasis added). And, they conclude, Conk lacks the required knowledge because he
admits to being familiar with neither. See id. at 10–12. But the Garvey Defendants do not
provide any case law supporting the notion that an expert’s knowledge of the standard of care
must be this narrowly tailored in order for his opinion to be admissible. 2 Analyzing how a
2 Indeed, in Jacobsen, a case the Garvey Defendants cite for the proposition that the Court should disregard a legal expert opinion that is based primarily on ethical rules, the court did not outright reject the testimony of the legal expert. See 555 F. Supp. 2d at 86. Because the expert acknowledged that his opinion was “not rooted in community or professional standards,” the court found that the opinion did not constitute the significantly probative evidence required to grant summary judgment to the plaintiff. Id. But the court still found that the expert’s opinion could constitute “colorable evidence” supporting the plaintiff’s case. Id.
12 lawyer would act in similar circumstances does not mean one has to determine how a lawyer
would act under the very same circumstances. Given that no two cases are the same, such a
requirement would essentially guarantee that no expert is ever qualified to testify in a legal
malpractice case. Furthermore, in the case at issue here, where ACI’s argument for liability is
based on the failure to make a disclosure in response to a conflict of interest—a situation that can
arise in all areas of practice—the Court is not convinced that knowledge of how a “competent
FCC lawyer” would act is required either.
Next, the Court also finds that Conk is sufficiently familiar with the facts of this case to
testify as to his expert opinion on the standard of care applicable to Virtue. The Garvey
Defendants argue that Conk “failed to review the pertinent facts,” Defs.’ Mem. Supp. 12,
because he did not read in full the depositions of Virtue, Solomon, and another deposed
individual before preparing his report, nor did he review ACI’s responses to the Garvey
Defendants’ requests for admissions and interrogatories, see id. at 13–16. According to the
Garvey Defendants, this failure to review discovery materials results in Conk’s testimony being
“worthless” and warrants striking it in its entirety. Id. at 17. The Court disagrees.
First, ACI’s theory of liability revolves around Virtue’s failure to make a series of
disclosures when faced with a particular situation the facts of which are mostly undisputed,
rather than with complex, disputed facts often at issue in cases where expert testimony is
required. The Court is therefore not inclined to strike Conk’s testimony simply because he has
not fully reviewed the discovery in this case. Indeed, the Court fails to see how Conk’s
consideration of ACI’s admissions that it did not make specific statements or requests to the
Garvey Defendants, see Garvey Defs.’ Mem. Supp. 15, would have changed his proffered
opinion when he opines that Virtue should have volunteered specific disclosures as a competent
13 attorney. Nor do the Garvey Defendants explain how Conk’s failure to review full deposition
transcripts rather than those portions he did review prevented him from obtaining sufficient
factual basis to form his opinion. 3 “An expert ‘need not consider every possible factor to render
a reliable opinion,” and here Conk’s opinion is “sufficiently reliable in the eyes of the Court.”
Campbell v. Nat’l R.R. Passenger Corp., 311 F. Supp. 3d 281, 299 (D.D.C. 2018).
And second, the Court does not find the discrepancies the Garvey Defendants identify in
Conk’s report sufficient to warrant striking him as an expert witness. To be sure, Conk’s report
proffers a number of opinions that do not appear relevant to this case, including on the liability of
Garvey Schubert Barer itself, see, e.g., Conk First Rebuttal Report 2; Second Rebuttal Report of
George W. Conk, Esq. 7, ECF No. 133-1. And Conk’s reports also contain a number of factual
inaccuracies. But the Court is not convinced that those inaccuracies demonstrate such a lack of
knowledge about the relevant facts as to render Conk’s opinion unreliable. The Garvey
Defendants will be able to cross-examine Conk at trial and will have the opportunity to discredit
his testimony to the extent they wish to show his opinion is not sufficiently based on facts. But
these problems go to the weight to be given to Conk’s testimony by the trier of fact, not to its
admissibility.
Finally, the Court addresses the Garvey Defendants’ argument that Conk is not qualified
to testify as an expert because he showed “pervasive disregard” for his duties as an expert
witness. Defs.’ Mem. Supp. 18. The Garvey Defendants argue that Conk disregarded the
procedural requirements for submitting his expert opinion, failing to comply with the deadlines
3 The Garvey Defendants characterize the deposition excerpts Conk states he has reviewed as “tidbits.” Garvey Defs.’ Mem. Supp. 13. The Court cannot agree with that characterization, when the excerpts Conk reviewed contained dozens of pages from each deposition. See, e.g., Excerpts from Dep. of Melodie A. Virtue, ECF No. 72-6.
14 set by this Court or to produce an expert report addressed directly to Count III. See id. 18–20.
And they appear to argue that he behaved unethically, including by providing intellectually
dishonest answers at his deposition. See id. at 20–22. As to that second argument, the Court is
not convinced by the Garvey Defendants’ characterization of Conk’s motivations and of his
deposition testimony, which they simply paint in a negative light by selectively citing from
Conk’s deposition transcript. See id. at 21. With respect to the disclosure requirements, the
Court certainly agrees that the irregular designation of Conk as a liability expert and failure to
provide an updated report reflects poorly on ACI. But it fails to see why ACI’s failure to comply
with its obligations should reflect on Conk’s qualifications as an expert.
In addition, unlike with the Davidson expert report, ACI’s disclosure of Conk as an
expert occurred within the deadline for the company to designate its liability experts, and the
Garvey Defendants were able to depose Conk and produce their own rebuttal expert. And while
Conk’s initial report did not purport to directly address Count III, it did provide Conk’s opinions
as to the liability of the Garvey Defendants. Ultimately, the Court finds the defects in ACI’s
disclosure harmless, and it therefore declines to strike Conk as an expert witness. See Moore,
926 F. Supp. 2d at 25 n.12 (quoting Fed. R. Civ. P. 37(c)).
IV. CONCLUSION
For the foregoing reasons, Defendant Henry A. Solomon’s motion to strike Plaintiff’s
expert Tom W. Davidson and the Garvey Defendants’ motion to strike Plaintiff’s expert George
W. Conk are both GRANTED IN PART AND DENIED IN PART. An order consistent with
this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 13, 2019 RUDOLPH CONTRERAS United States District Judge