DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX ║
JAMIE LAMMERING, ║ ║ Plaintiff/Counter-Defendant, ║ ║ 1:23-cv-00059-WAL-EAH v. ║ ║ JUSTIN KORN and ║ MIRAMAR VI, LLC, ║ ║ Defendants/Counter-Plaintiffs. ║ ________________________________________________ ║ TO: Lee J. Rohn, Esq. Robin P. Seila, Esq. Andrew P. Remeselnik, Esq. Joseph D. Sauerwein, Esq. Matthew J. Duensing, Esq.
ORDER THIS MATTER comes before the Court on the “Motion to Strike Rebuttal Report,” filed on July 18, 2025 by Attorney Matthew J. Duensing on behalf of Defendants/Counter- Plaintiffs Justin Korn and Miramar VI, LLC (“Defendants”). Dkt. No. 187. Defendants contend that the expert report served by Plaintiff Jamie Lammering on July 7, 2025 constitutes an unauthorizeIdd. rebuttal report in violation of the Court’s Orders and the Federal Rules of Civil Procedure. The Plaintiff, through Attorney Lee J. Rohn, filed a response in opposition, Dkt. No. 190, and Defendants filed a reply. Dkt. No. 207. For the reasons that follow, the Court will grant the Motion to Strike. BACKGROUND
Plaintiff’s Complaint, which was removed from Superior Court to this Court in Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 2
property manager for a rental property owned by Miramar VI, LLC on St. Croix. Dkt. No. 1-1 I¶d¶ 6-8. As part of her duties, Plaintiff was required to live in an apartment on the property. . ¶ 9. After Hurricane Maria inId 2. 017, the apartment allegedly sustained damage that led to water leaks and mold growth. ¶¶ 16-17. Plaintiff claims that Defendants were negligent and caused her physical injury by refusing to approve repairs to address the moIldd, which she alleges caused sinus and breathing problems, leading to medical treatment. . ¶¶ 16-26. Defendants filed an Answer and a Counterclaim in January 2024. Dkt. No. 14. On March 19, 2024, the Court entered a SSeceh eduling Order that required Plaintiff to serve her expert reports by January 27, 2025. Dkt. No. 28 at 3. The Scheduling Order further pIdrovided that “[n]o rebuttal reports” would be permitted without seeking “leave of Court.” . On October 31, 2024, the Court amended the Scheduling Order, extending the expert report deadline to April 7, 2025, while maintaining the prohibition on rebuttal reports abseAn. t Tlehaev eE. xDpketr. tN Ro.e 8p7o ratts 6 . Plaintiff’s causation expert, Dr. Joseph Smolarz, served his initial expert report on April 7, 2025. Dkt. Nos. 166 (Notice); 190-2 (Report). In his four-page report, Dr. Smolarz discussed the potential health impacts of mold exposure on Plaintiff, citing medical literature linking mold exposure to conditions su ch as chronic sinusitis, allergic rhinitis, fatigue, and cognitive dysfunction. Dkt. No. 190-2 at 2–4. He summarized the timeline of Plaintiff’s symptoms, which he stated began after she moved into Itdh.e apartment in 2014 and worsened Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 3
sustained water damage after Hurricane MIadr.ia in 2017 that was not promptly repaired, resulting in ongoing moisture intrusion. at 2. Dr. Smolarz referenced an ADCON 0F 1 Environmental Services report from a June 2022 inspection of Ms. Lammering’s apartmIde. nt, which identified visible mold and water damage but did not include air quality testing. He concluded that mold exposure significantly contributed to Plaintiff’s health issues. However, the lack of air qualiItdy. and allergy testing limited his ability to fully assess the extent of the exposure’s impact. at 2–4. On May 22, 2025, Defendants served the expert report of Dr. Dennis Hooper, their medical expert. Dkt. Nos. 171 (Notice), 207-1 (Report). Dr. Hooper relied on Plaintiff’s medical records, the ADCON Environmental Report, and peer-reviewed toxicological studies addressing mold and mycotoxin exposure. Dkt. No. 207-1. He applied the Bradford Hill criteria, a nine-factor framework used in epidemiology and toxicology, to assess causatioIdn. between Plaintiff’s alleged mold exposure at the property and her chronic rhinosinusitis. at 4–6. Dr. Hooper noted that Plaintiff’s records reflected self-reported “real bad sinus issues” in 2013, years before the alleged mold exposure in the apartment; that “no objective medical or laboratory evidence” connected mold to Plaintiff’s condition; and that the literature “does not establish a known biological mechanism linking household mold
1 S eAeDCON Environmental LLC is an environmental services company that specializes in asbestos, lead, mold abatement, remediation, testing, investigation and consulting services. ADCON, https://www.adconenvironmentalservices.com/ (last visited Nov. 10, 2025). As part of discovery, Plaintiff provided the ADCON Environmental Report, a detailed indoor air Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 4 Id.
exposure to chronic rhinosinusitis.” at 5. He further observed that the ADCON Environmental Report contained no air quIdal.ity testing data capable of supporting a causal inference concerning Plaintiff’s condition. He concluded that all nine of the Bradford Hill criteria were not met in Ms. Lammering’s case and that the evidence did not support a caIdu.se- and-effect relationship between mold in the apartment and her chronic rhinosinusitis. On July 7, 2025, two business days before the scheduled deposition of Dr. Smolarz, Plaintiff served a fourteen-page report titled “Dr. Joseph Ryan Smolarz’s rebuttal report regarding the Application of Bradford Hill criteria and Documented Impacts of Environmental Mold and Mycotoxins in the Case of Jamie Lammering” (the “July 7 Report”). Dkt. Nos. 179 (Notice), 190-1 (Report). The July 7 Report discussed the impacts of environmental mold and mycotoxins on human respiratory and immune systems, described several mold species and their toxic byproducts, and asserted that such exposures can contribute to chronic rhinosinusitis. Dkt. No. 188-1. It identified a temporal relationship between Plaintiff’s symptomIsd a. nd her alleged mold exposure, relying on medical records and environmental information. at 12–16. Additionally, the July 7 Report applied the Bradford Hill criteria and concluded that the evidence “strongly support[ed] a causal link between mold exposure and chronic rhinosinusitis” and declared that PlaintifIfd h.ad no prior history of chroBn. icD rehfiennodsiannutssi’t iMs boetifoonre t loiv Sitnrgi kine the mold-affected apartment. at 4–9.
On July 18, 2025, Defendants filed a Motion to Strike Plaintiff’s July 7, 2025 Expert Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 5
Amended Scheduling Order, which prohibited rebuttal reports without prior leave of Court, 1F 2 and contravened the deadlines set by Rule 26(a)(2)(D)(ii) for rebuttal disclosures. Dkt. No. 188 at 4–5. They assert that the July 7 Report, labeled as a “Rebuttal Report,” introduced new scientific theories and directly rebutted Dr. HoopeIrd’.s opinio ns, making it an unauthorized rebuttal rather than permissible supplementation. at 2–3.Defendants emphasize that the report was served afteIrd t.he expert disclosure deadline and only two business days before Dr. Smolarz’s deposition. at 2. Defendants further highlight that Plaintiff’s counsel filed a “corrected” version of the Report on July 9, 2025, changing only the word “rebuttal” in the title to “supplemental” while the content stayed the same. Dkt. Nos. 188-1 (Report), 188-4 (Corrected Report). Defendants also provide email correspondence in which they informed Plaintiff’s counsel that the July 7 Report was an untimely rebuttal report that violated the Court’s Scheduling Order and requested Plaintiff withdraw it. Dkt. Nos. 188-2, 188-3 (email correspondence). Plaintiff’s counsel responded that the report required supplementation due to “newly discovered information regarding Dr. Hooper’s Ipdu. blications” and threatened Rule 11 sanctions if Defendants filed a motion to strike. After Plaintiff’s counsel refused to withdraw the r eport, Defendants filed the p resent Motion. Dkt. Nos. 187, 188 at 5.
2 Rule 26(a)(2)(D)(ii) requires that if a party intends to use expert testimony solely to contradict or rebut evidence on the same subject matter identified by another party, that Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 6 C. Plaintiff’s Response
On August 20, 2025, Plaintiff filed a Response in Opposition. Dkt. No. 190. Plaintiff argues that although Dr. Smolarz, a non-attorney, initially used the term “rebuttal” in the July 7 Report’s title, the report should be tIrde.a ted as a supplement to his original report because the substance, not the label, controls. at 6. Plaintiff maintains that the July 7 Report does not introduce new opinions or expand Dr. Smolarz’s testimony but rather reaffirms his original conclusions by analyzing the dIdata relied upon by Dr. Hooper and clarifying points about medical consistency over time. . Lammering further asserts that supplementation was required under Rule 26(e), which mandates disclosure when a prior report is “incomplete or incorrect in some mateIrdi.al respect,” and the additional information was not otherwise disclosed during discovery. She contrasts this with Rule 26(a)(2)(D)(ii), which governs rebuttal expert reports “intended solely to contradict or rebut evidence on the same subject matter,” and argues that the July 7 Report did not rebut Dr. Hooper’s opinions but instead responded to a new analytical framework not pIrde.viously disclosed, ensuring that Dr. Smolarz’s opinions were more accurate and complete. at 7–8. Plaintiff identifies three issues raised in Dr. Hooper’s report that she claims warranted supplementation: (1) Dr. Hooper’s use of the Bradford Hill criteria, which Plaintiff characterizes as a “new analytical framework” not previously disclosed by Defendants; (2) his reliance on a 2013 chiropractic record noting Plaintiff’s prior sinus issues, which he used to suggest a preexisting condition undermining the link between mold exposure and Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 7 Id.
identifying specific contaminants. at 9–10. Plaintiff explains that because Dr. Smolarz did not initially review the chiropractic records, the July 7 Report updated hIids . analysis to incorporate those records and situate them within Plaintiff’s medical history. Finally, Plaintiff contenIdds. that even if the July 7 Report is considered a rebuttal report, exclusion is not automatic. at 11. Plaintiff references Rule 37(c)(1), which permits exclusion only if a failure tPoe dninsycploascek is neither substantially justified nor harmless and urges tIdh.e Court tMoe cyoenrss ivd.e Pre tnhney pack Wood sfa Hctoomrse tOow dneetresrhmipin Aes sw’nhether exclusion is appropriate. (citing Pennypack , 559 F.2d 894, 904–05 (3d Cir. 1Id9.77)). Plaintiff argues that the factors weigh against striking the July 7 Report. D. Defendants’ Reply On September 12, 2025, Defendants filed a Reply. Dkt. No. 207. They reaffirm their position that the July 7 Report is an unauthorizIedd. rebuttasle ree aplosrot filed without leave of Court in violation of the Amended Scheduling Order. at 1–2; Dkt. No. 87 at 6. Defendants dispute Plaintiff’s claim that the report qualifies as permissible supplementation under Rule 26(e), arguingId t. hat it neither corrects inaccuracies nor introduces previously unavailable information. They contend thaIdt .none of the three purported “new” issues meet the standard for supplementation. First, the Bradford Hill criteria, which Plaintiff characterizes as a new analytical framework, have been in use since 1965 and are commonIldy. referenced in toxicology and epidemiology, including in numerous mold exposure cases. Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 8 Id.
2025 report but did not. at 1. Second, they note that the 2013 chiropractic record reflecting “real bad sinus issues” was produced by Plaintiff dIudr. ing discovery on February 7, 2025, and was addressed in her December 2024 deposition. at 2. Therefore, Dr. Hooper’s use of that record did not introduce a “newId p.reexisting condition theory” nor was he relying on information previously unavailable. at 2. Third, they point out that the ADCON Environmental Report, which Dr. Hooper criticized, was cited in Dr. SmolarzI’sd .initials reeep aolrsto, so any commentary on its methodology cannot constitute new information. at 2; Dkt. Nos. 207-3 (Dr. Smolarz Initial Report), 207-4 (ADCON Report). Defendants further argue that the July 7 Report mirrors Dr. Hooper’s opinions point by point, introducing new literature, revisiting medical records, broadening Dr. Smolarz’s causation theory, anIdd .effectively rewriting his original report, all of which are characteristic of rebuttal reports. at 3–4. They claim that serving the July 7 Report two business days before Dr. Smolarz’s deposition caused significant prejudice, depriving them of timIed .to review the new material, consult with Dr. Hooper, and prepare additional questioninDga. ube artt 4. Defendants also argue that the late disclosure will disrupt the case schedule, as 2F 3 motions have already been filed, and additional depositions or briefing would requiIrde. adjusting deadlines and incur extra costs for experts, court reporting, and attorney’s fees. Daubert motions,
3 In addition to the since the cloSseee o, fe e.gx.pert discovery on July 18, 2025, the parties have filed numerous motions, including dispositive motions, motions in limine, and accompanying Statements of Undisputed Facts. , Dkt. Nos. 192–202 (Plaintiff’s and Defendants’ cross-motions for summary judgment and supporting materials); Dkt. Nos. 195– Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 9
Because Plaintiff did not seek leave of Court and provided no substantial justification for the timing of the July 7 Report, Defendants ask the Court to strike the report, preclude its use at trial, and bar Dr. Smolarz fDroamub reerltying on any Iodpinions contained in it if he is permitted to testify following Defendants’ D cIhSaClUleSnSgIeO. N . at 5. The first question before the Court is whether the July 7 Report submitted by Dr. Smolarz is a rebuttal report or a supplemental report. If it is a rebuttal report, the Court must determine whether exclusion is warranted since the Amended Scheduling Order expressly prohibited rebuttal reports without leave of Court, and no such leave was requested. However, if the report is a supplemental report, the Court must determine whether it would be permissible under Fed. R. Civ. P. 26(e), as a timely correction or completion of prior disIc. losuWrehse. ther Dr. Smolarz’s July 7 Report Is a Rebuttal Report or a Supplemental Report
A. Applicable Rules and Case Law Rule 26(a)(2) of the Federal Rules of Civil Procedure requires disclosure of expert identities and written reports, including a complete statement of the expert’s opinions and their basis. Fed. R. Civ. P. 26(a)(2)(A)s,e (eB a)(lsi)o. ITnh rees Pe adoislic Rlo.Rsu. Yreasr dm PuCsBt cLoitmigp.ly with the court's schedule. Fed. R. Civ. P. 26(a)(2)(D); , 35 F.3d 717, 791- Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 10
92 (3d Cir. 1994). Rebuttal reports, under Rule 26(a)(2)(D)(ii), are meant solely toW coitnhtrroawdi cvt. oSpr eraerbsut evidence from another party, not to adInd rree sAss bgeesnteorsa Pl rsoudbsj. eLcita bm. Laitttiegr.. (No. IV) , 967 F. Supp. 2d 982, 1000 (D. Del. 2013); , No. 09-74410, 2012 WL 661660, at *3 (E.D. Pa. Feb. 29, 2012). Rebuttal reports cannot iBnrtarodldeuyc ve. nAemwa zoopnin.cioomns, Ionrc .methodologies that could have been included in the initial report. , No. 17-1587, 2023 WL 2574572, at *13–14 (E.D. Pa. Mar. 17, 2023). Moreover, supplemeanntda itfion is required if a party learns that material information is “incomplete or incorrect,” the additional or corrective information has not oKtihmemrweils ve. bMeaesnsa mchaudsee kttnso Bwany tIon sth. eC oo.ther parties during the discovery process or in writing. , No. 21-12743, 2023 WsLe e8 a7l1so43D3a6n,d ayt v *. 4E t(hDic.Non.J .W Doemc.e 1n5's, H2e0a2l3th) (&c iUtirnoglo Fgeyd. R. Civ. P. 26(e)(1)) (citation modified); , 579 F. Supp. 3d 625, 629 (D.N.J. 2022) (“Supplementation is proper only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.”) (citation modified). “Rule 26(e) is not an avenue to correct failures of omission because the expert did an inadequatIen orer Ainscboemstopsle Ptreo pdr. Lepiaabr.a Ltiitoing., (aNdod. nVeI)w opinions, or deepen or strengthen existing opinions.” duty , 28r9ig Fh.tR.D. 424, 425 (E.D. Pa. 2013) (citation modified)F. a“iIenl lsah vo.r St,u Rnubleel t2 R6e inmtaploss, eIns ca. not a to produce information in a belated fashion.” , 341 F.R.D. 553, 563 (D.N.J. 2022) (emphasis in original). FurthermorRee, iac hrheobludt,t Ianlc r. evp. Uor.St . cManetnaolst Rbee fl.a Cboe.led as a supplement to bypass a court’s scheduling order. Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 11 B. Application
The July 7 Report critiques Dr. Hooper’s expert analysis, directly respondSinege pBararadglerya pvh. bHya rpraarha'gsr Aaptlha,n ttoic h iCsi tayp pOlpiceartaitoinn go fC toh.e, LBLrCadford Hill criteria to Plaintiff’s case. , No. 21-10485, 2023 U.S. Dist. LEXIS 153620, at *1 (D.N.J. Feb. 27, 20H2a3sk) i(nrsebvu. tFtairl srte pAomrt. sT siytslete mInas.t iCcaol.ly address each part of the opposing expert's analysis); , No. 10-5044, 2013 WL 5410531, at *2 (D.N.J. Sept. 26, 2013) (rebuttal reports critique the evidence and opinions offered by the opposing expert). At his deposition, Dr. Smolarz confirmed that the. July 7 Report was prepared “to address [Dr. Hooper’s] concerns.” Dkt. No. 207-5 at 36–37 Courts have treated similar reports as rebuttal where the expert expreCssrleys tswtaotoedd hMee wmabsr arenseps,o Inndci.n vg. tCoo nasnt aonptp Soesrivnsg., Ienxcp.ert and offered a point-by-point critique. , No. 3:15-CV-537, 2018 WL 493248, at *2 (M.D. Pa. Jan. 19, 2018). The July 7 Report was initially titled “rebuttal report regarding the Application of Bradford Hill criteria,” Dkt. No. 188-1, aligning with its function as a rebuttal; the change of title to “supplemental report” doeSse en Roeti cmhhaokled , iItn co.ne, particularly because its content remained that of a rebuttal report. , 2007 WL 1428559, at *14 (rejecting an untimely “supplement” where the party sought to respond to the opposing expert’s opinions, finding that such a report was rebuttal and could not circumvent the court’s deadlines). Courts reject attempts to re-label rebuttal material as “supplementation” when the reporItd .mseeree alyls or Nesopvoanrtdiss Pthoa rtmhes . Cooprppo.sing expert’s criticisms or bolsters the initial Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 12
23, 2013) (a report that “clarifies” or strengthens an expert’s earlier opinidio. ns in response to an opponent’s criticisms is rebuttal, not Rule 26(e) supplementation); at *8 (explaining that a party m ay not avoid scheduling orders by characterizing a rebuttal report as supplemental). Furthermore, the July 7 Report cannot be considered supplemental because it neither corrects inaccuracies in the initial disclosure nor fills the interstices of aSnee i nNcoovmaprtliest eP hreaprmorst. bCoasrped. on information that was previously unavailable to Dr. Smolarz. , 2013 WL 7045056, at *8 (an expert report “does not qualify as a supplemental report under Rule 26(e) when it does not correct inaccuracies or add information unavailable to expert at the time of their initial report”) (citation modified). Here, the Bradford Hill criteria were already known and used in the field, and Dr. Smolarz could have included them in his initial report. Similarly, the 2013 chiropractic record and the ADCON Environmental Report were produced by Plaintiff prior to the discovery deadlineId o.fs Feee barlsuoa Eryz a7k, i 2G0li2c5o ,K aanbdu swheiklli bKeafioshrea Dvr. .L Somttoel aInrzt’’ls Ainmit.i aClo rrepp.ort deadline on April 7, 2025. ; , No. 15-5477, 2019 WL 581544, at *4 (D.N.J. Feb. 13, 2I0n1 9re) (Arsebveisstionsg Pa rroedps.o rLt iaubs.i nLgi tpigr.e v(iNouo.s lyV Ia)vailable information is not supplementation); , 289 F.R.D. at 425 (Rule 26(e) does not allow supplementation to fix inadequacies in an initial report). The use of these materials in Stheee JNuolyv a7r tRise Pphoartr mwsa. sC oar rpe.sponse to Dr. Hooper’s report, and thus not a valid supplement. , 2013 WL 7045056, at *7 (rejecting attempts to supplement an expert Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 13
reasons, the Court concludes that the July 7 Report is a rebuttal expert report subject to Rule 26(a)(2)(D)(ii). Since the Scheduling Order prohibited rebuttal reports without leave, and no leave was sought, the Court will now consider whether exclusion of the July 7 Report is warIrIa. ntedW. hether the Court Should Strike the Rebuttal Report A. Rule 16(b) Standard Federal Rule of Civil Procedure 16 Nauetwhtoorniz ve. sA c.Co. u&r tSs. , tIon ci.ssue scheduling orders to ensure orderly litigation. Fed. R. Civ. P. 16; , 918 F.2d 1121, 1126 (3d Cir. 1990). Under Rule 16(b)(4), a party can modify a scheduling order upon a showing of “good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). To establish good cause, the party must demonstrate Fthaaiet lclaompliance could not ibde. reasonably met despite its diligent efforts. Fed. R. Civ. P. 16(b); , 341 F.R.D. at 558; at 558–59 (explaining that a valid, and reasonable reason for noncompliance can satisfy the requirement for diligence). Courts consistently hold that the good cause standard is not satSisefeie, de. gw.hReong ag pioa rvt.y F w.Ba.Is. aware of the facts that would lead it to seek leave but failed to act. , Eicho, rCni vv.. NAoT. &08 T- 4Co9r9p1.,, 2011 WL 3625042, at *5 (D.N.J. Aug. 17, 2011) (collecting cases); 484 F.3d 644, 651 (3d Cir. 2007). Exclusion of expert reports is aS ewee Llol-cekshtaabrtli vsh. Wedil lirnegmbeodroy Hfiogrh sScchhe.duling order violations where no good cause is shown. , No. 14-3701, 2017 WL 11465996, at *7 (D.N.J. May 3, 2017) (affirming exclusions eoef aelxspoe Hrta mmialttoenri avl. Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 14 Dowson Holding Co.
, No. 2008-2, 2010 WL 3119912, at *4 (D.V.I. July 30, 2010) (striking supplemental expeRrto rbeinpsoornt vw. hFerereig thhtlei npearr LtyL Co,ffered “little to no justification” for violating scheduling order); No. 08-cv-761, 2010 WL 887372, at *1 (M.D. Pa. Mar. 10, 2010.”) (“A court may excludUe nlaitteed eSxtpaeterts tve. s6t8im.9o4n Ayc .r .e s. iof ff iLleadn din violation of a scheduling order ) (citation modified); , 918 F.2d 389, 396 (3d CirB. .1 9A9p0p)l. ication The Amended Scheduling Order, entered October 31, 2024, expressly prohibited rebuttal reports without prior leave of Courste. eD ksut.p Nrao. 87. Because the Court has determined that the July 7 Report is a rNebouvattratli sr Pephoarrtm, s. Corp. , Plaintiff’s failure to seek leave before filing it violated the Order. See Faiella , 2013 WL 7045056, at *8. This violation falls squarely under Rule 16(b)(4). , 341 F.R.D. at 560 (Rule 16(b)'s good cause standard applies when a party produces evidence in disregard of a scheduling order). To show goRoadce c aTuirsees, PAlmai.n, Itnifcf . mv.u Hsto posrioevre R iat cminagd eT idrieli gCeonrpt .efforts to comply with the Scheduling Order. , 614 F.3d 57, 84 (3d Cir. 2010). The diligence inquiry asks whether Plaintiff possessed, or through reasonablSem diitlhig ve.n Hcoen sehyowueldll hInatveer np. oInssce.ssed, the knowledge necessary to seek leave from the Court. , Civ. No. 10-3345, 2014 WL 301031, at *6 (D.N.J. Jan. 27, 2014). The Court finds that Plaintiff has not shown diligence. Plaintiff was aware that rebuttal reports required leave because the Court’s initial Scheduling Order, issued March Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 15
rebuttal reports without prior permission. Moreover, even if leave had not been required, the July 7 Report was still untimely. Rule 26(a)(2)(D)(ii) requires that rebuttal disclosures be served within 30 days after the other party’s expert disclosure, here, Dr. Hooper served his report on IMn arey P2a2o, l2i 0R2.R5., Ymaarkdi PnCgB P Llaiitnigt.iff’s rebuttal deadline June 21, 2025. Fed. R. Civ. P. 26(a)(2)(D); , 35 F.3d at 791–S9e2e. GPlloabinetsipffa dniVdi rnaotta s, eInrvce. vt.h Tee Jxualys 7In Rsterpuomretn utns,t Iinl cm. ore than two weeks after that deadline. , 2005 WL 1638136, at *3 (D.N.J. July 12, 2005) (no good cause where a party fails to act promptly despite possessing the necessary information). Plaintiff knew of Dr. Hooper’s opinions and recognized the need to respond, as eNvoivdaerntcise dP hbayr tmhes. rCeobrupt.tal content of the July 7 Report but failed to seek leave as required. , 2013 WL 7045056, at *8 (leave is required where scheduling orders prohibit rebuttal reports). Instead, Plaintiff filed the July 7 Report as a “rebuttal report,” and after Defendants objected that it was an impermissible rebuttal, she withdrew it, relabeled it, and refiled it as a "supplemental report." This relabeling does SneoetG srhahoawm d vil. iPgerongcree; sisti vseu Dgigreesctts I nas .s Ctroa.tegic attempt to circumvent the Scheduling Order. , 271 F.R.D. 112, 121 (W.D. sPeae. a2l0s1o 0M) e(traccetdiecsa lB deenczi sUioSnAs LaLnCd vd.e Claoyass tb yA uextop.e Grirepn. cLetdd .counsel do not establish diligence); , No. 99-3121, 2008 WL 4378294, at *5 (D.N.J. Sept. 23, 2008) (excluding essential evidence where noncompliance appeared strategic). Price v. Trans UTnhioen t,i mLLiCng of the July 7 Report further confirms Plaintiff’s lack of diligence. Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 16
timely act on information in its possession). Plaintiff waited more than six weeks after receiving Dr. Hooper’s report and then served the July 7 Report only two business days before Dr. Smolarz’s deposition, depriving Defendants of a fair opportuPnraitxya itro, Iannca. lvy. zAeT tMhIe, Innecw. material, consult with their expert, asened a plrsoep Faariee lfloar the deposition. , 231 F.R.D. 457, 463 (D. Del. 2005); , 341 F.R.D. at 563 (noting that strict enforcement of deadlines prevents a party from introducing new expert analyses on short nKootpilcoev)e. Av.l lFoowrdin Mg otthoer fCiloin. g to stand would undermine the orderly progression of the case. , 795 F.2d 15, 18 (3d Cir. 1986). Plaintiff’s mistaken or strategically mistaken belief that the July 7 Report qualified as a supplemental disclosure does noKti negx cvu. sTei mthmeo Sncehyeduling Order violation. A mistake of law “does not constitute good csaeues ea.l”s o Graham , No. 02-cv-6669, 2003 WL 22436228, at *6 (E.D. Pa. Oct. 24, 2003); , 271 F.R.D. at 121 (attorney error is insufficient to constitute good cause under Rule 16(b)). Nor may a party use Rule 26(e) as a “loophole” to correct or expand expert opinions after deadlines have pasAsbebdo, tet sLpaebcsi.a vl.l yL uwpihne Lnt da. scheduling order expressly prohibits rebuttal repNorotvsa arbtisse Pnht aleramvse. .C orp. , 2011 WL 1897322, at *3 (D. Del. May 19, 2011); , 2013 WL 7045056, at *5 (an obligation to supplement does not excuse noncompliance with a scheduling order). Beca uSesee FPalaieinllatiff violated the Sche Zdyudluinsg W Oorrdldewr iwdeit hDoMuCt Cg vo.o Tde vcaa uAsPeI, Ienxcc.lusion is warranted. , 341 F.R.D. at 563; Lockhart , No. 19- 1687.09846 A, c2r0e2s 5o fW LLan 2d0,57828, at *6 (D.N.J. July 22, 2025); , 2017 WL 11465996, at *7; Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 17
to Strike and prohibit Plaintiff from relying on the July 7 Report in its summary judgment filings and Ca.t tFriuarl.t her Support for Striking the July 7 Report Pennypack Plaintiff argues that the Court should apply the factors to determine whether the PJuenlyn y7p Raeckport should be stricken. Dkt. No. 190; 559 F.2d at 904–05. Plaintiff’s reliance on is misplaced. The Court’s Scheduling Order expressly prohibited rebuttal reports without leave. Dkt. No. 87 at 6. However, on July 7, 2025, Plaintiff served a document titled “rebuttal report,” withdrew it, and then re-served the same document as a “supplemental” report. Dkt. Nos.S 1ee8 1su, 1p8ra2, 183, 184. As explained above, the July 7 Report is, in substance, a rebuttal report. . Serving an unauthorized rebuttal report violated the Scheduling Order, and such violations are governed by Rule 16F(abi)e,l lawhich requires diligence in complying with court ordered deadlines and directives. , 341 F.R.D. at 562–66P. e nnypack does not excuse noncompliance with a scheduling order because itI di.s a Rule 37 sanctions framework, not a substitute for Rule 1P6e(nbn)y’sp dacilkigence requirement. at 563, 566. Courts consistentSlye eh Foilndj atnh, aItn cR. uv.l eR a1p6i,d 7n,o Itn c. , controls when a party violates a scheduling order. , No. 18-1519, 2020 WL 579O8ts5u4k5a, aPth a*5rm–6. C(oD.. vD. eAlu. rSoebpitn. d2o9 P, h2a0r2m0)a (LRtdu.le 16 governs violations of a scheduling order); , No. 14-3306, 2017 WL 11463663, at *4–5 (D.N.J. Sept. 15, 2017) (same). Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 18 Pennypack
Although Rule 16(b) governs, the Court considers in the alternative becauseP ePnlaniynptaifcf krelies on it, Dkt. No. 190, but not because it is required in this instance. Under , courts evaluate five factors when determining whether exclusion is appropriate under Rule 37(c)(1): (1) “the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified” or the excluded evidence would have been offered; (2) “the ability of that party to cure the prejudice”; (3) the extent to which allowing such witnesses or evidence would “disrupt the orderly and efficient trial of the case or of other cases in the court”; (4) any “bad faith or willfulness in failing to comply with the court's order”; and (5) these iem aplosor tance of the excluded evidence. 559 F.2d at 904–05; Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use that information or witness tPoe nsnuypppalcyk evidence on a motion, at a hearing, or at a trial.”) (citation modified). The See Astraazneanleycsais A isB f lve. xMibulte. , Pahnadr emx.c Cluos.ion may be warranted even if not all factors asfuf'pdp sourbt into. m. Astrazeneca AB, Aktiebolaget Hassle, ,2 K7B8I -FE. , SIunpc.p v. . 2Mdu 4t.9 P1h, a5r1m0 . (CEo.D. . Pa. 2003), Konstantopoulos v. Westvaco Corp. , 384 F.3d 1333 (Fed. Cir. 2004); , 112 F.3d 710, 719–20 (3d Cir. 1997) (affirming exclusion where several factors weighed against the party, emphasizing that courts need not find every factor satisfied). First, regarding prejudice, the timing of the July 7 Report supports exclusion. Plaintiff served the July 7 Report more than six weeks after Dr. Hooper’s expert report and only two business days before Dr. Smolarz’s deposition. This deprived Defendants of a meaningful Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 19
deposition. Courts consistently findS tehea Nt liactheo elaxsp ve.r Pt ad.i sSctalotseu Urnesiv a.re prejudicial because they hinder a party’s ability to respond. , 227 F.3d 148, 155 (3d Cir. 2000) (affirming exclusion where untimely disclosures deprived opposing party of adequate time to prepare). This prejudice is not unique. Courts also recognize that when scheduling orders are Avsiotrlaatzeedn,e “caan A oBpposing party is often prejudiced by Tthriel oegnys uCionmg dmecl’anys ,a Inndc .r ev.s uTlitmanest eFxibpeern Cseo.m” mc’ns, Inc. , 278 F. Supp. 2d at 508 (quoting , 109 F.3d 739, 744 (Fed. Cir. 1997)). The prejudice here is therefore direct, predictable, and significant. Second, the ability to cure prejudice and the risk of disrupting the orderly progress of the case also support exclusion. This casSee heas been pending since August 2023 and concerns alleged injuries from 2019 or earlier. Dkt. No. 1-1. ThSeee Court’s Amended Scheduling Order set July 18, 2025 as the close of expert discovery. Dkt. No. 87 at 6. Curing the prejudice would require reopening expert discovery, re-deposing Dr. Smolarz, and permitting Defendants to serve a responsive report. That step would significantly disrupt the litigation at this stage. Defendants filed their Motion to Strike on July 18, 2025, and briefing on that motion was not completed until September 12, 2025. Dkt. Nos. 187, 207. During that same period, both parties filed numerous dispositive motions, Dkt. Nos. 192, 193, 200, 202, evidentiary motions, Dkt. Nos. 195, 196, 198, 199, and Statements of Undisputed Facts, Dkt. Nos. 194, 201. Reopening discovery at this juncture would require the parties to revisit these filings, extend briefing schedules, and delay any potential trial date. Courts Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 20 See Praxair, Inc.
undermine the orderly administration of the docket. Faiella, , 231 F.R.D. at 463 (disruption caused by late expert analyses is unacceptable); Koplov3e41 F.R.D. at 563 (scheduling orders must be strictly enforced to prevent delay); , 795 F.2d at 18 (same). The Third Circuit likeSweeis eK uopnhstoalndtso epxoculluossion where late disclosures threaten the Court’s case management. , 112 F.3d at 719–20. Under these circumstances, the disruption that would result from reopening discovery weighs strongly in favor of exclusion. Third, the bad faith or willfulness factor also supports exclusion. Plaintiff bypassed the Court’s Scheduling Order requirement to seek leave before filing the July 7 Report, withdrew it after Defendants objected that it was an impermissible rebuttaSle ree BpeoarrtB, aonxd L tLhCe vn. rLeafnilceidu mth eL LsCame report under a different title without ever seeking leave. aff'd, , No. CV 21-534, 2022 WL 17403466, at *2 (D. Del. Nov. 23, 2022), 125 F.4th 1101 (Fed.P Ceinrn. y2p0a2c5k) (disregarding the express terms ofV aa sskcahse dv.u Klienngw oorrdtehr T irnudcikca Cteos. bad faith under and weighs in favor of exclusion); , No. 3:10-cv-1024, 2013 WL 1207963, at *4 (M.D. Pa. Mar. 25, 2013) (serving an expert report without leave supports finding of willfulness). Although Plaintiff insists the July 7 Report was “required” supplementation, she offers no reasonable explanation for failing to seek leave, nor for serving the report two business days befoNroev tahreti sd ePphoasrimtiso.n C. oAr pp.arty’s explanation is relevant tose teh ael bsoa dL afamitbhd aan Odp wtiiclalflu Slnoless.,s L iLnCq uvi. rAyl.c atel-Lucent USA Inc. , 2013 WL 7045056, at *7 n.8; , No. 10-487, 2013 WL Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 21
factor, theZ Fn oMne-rmitoovra, nLLt’Cs evx. pElaatnoant iCoonr pis. still considered under the bad faith or willfulness factor.”); , 696 F.3d 254, 299 (3d Cir. 2012). Here, Plaintiff’s only response to Defendants’ procedural objection was to relabel the report and threaten Rule 11 sanctions rather than address the undisputed violation of the Scheduling Order. That type of escalation—paired with no meaningfuSle eju Estxixfiocna tCioonrp .f ovr. Hmailscsoinn gS htihpep indge aCdol.ine— supports a finding of willfulness and bad faith. , 156 F.R.D. 589, 592 (D.N.J. 1994) (unsatisfactory explanations for violating scheduling orders “may be characterized fairly as a willful and bad faith breach”). Therefore, the fourth factor weighs in favor of exclusion. Finally, the importance of the evidence does not outweigh the violation of the Scheduling Order. Plaintiff argues that the Report is necessary to respond to Dr. Hooper’s application of the Bradford Hill criteria. But the July 7 Report does not rely on any newly discovered information. It draws entirely from medical records, environmental information, and scientific literature that were available to Dr. Smolarz before his April 7 deadline. CouSretes, reo.gu.tinFealyie rlleaject late disclosures when the underlying information was available earlier. , , 341 F.R.D. at 563 (rejecting characterization of late opinions as “BseuaprpBloexm LeLnCtation” when they attempted to introduce information previously available); , 2022 WL 17403466, at *2 (excGlulodbinegsp laanteV-idriastcal,o Isnecd. evidence when it should have been introduced earlier in the process); , 2005 WL 1638136, at *3. Excluding the July 7 Report also does not leave Plaintiff without expert testimony on Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 22
the opinions disclosed therein. Courts have found exclusion appropriate where, Basri hdegreest, othnee pSpaortryts s tCioll. rve. tAaicnuss henxepte rCto e.vidence, and exclusion would not “cripple” the case. , No. 05-132, 2007 WL 521894, at *4–5 (D. Del. Feb. 15, 2007) (excluding late-disclosed evidence because similar expert material remained available). The same reasoning applies here: Plaintiff may present her expert’s Sineieti3a6l 0cHauesraotsi ov.n G oopPirnoions, but she cannot expand them in violation of the Scheduling Order. , No. 17-1302, 2022 WL 2063262, at *2 (D. Del. June 8, 2022) (rejecting additional expert material where the pParrtayx asitri,l l Ihnacd. its original experts and allowing the new report would disrupt deadlines); , 231 F.R.D. at 463 (rejecting late expert analysis despite its significance because it disrupted the orderly progress of the case). Even if the Court were persuaded thPate nthney pJualcyk 7 Report carries some significance, the Third Circuit has made clear Kthoants tnaontt oaplol ulos factors musts efae vaolsro eAxsctlruaszieonne cfao rA Bthe sanction to be warranted. , 112 F.3d at 719–20; , 278 F. Supp. 2d at 508 (courts mBraidyg eesxtcolunde eS peovritdsence even if not every factor is met, particularly in complex cases); , 2007 WL 521894, at *4–5 (same). Here, the prejudice to Defendants, the inability to cure that prejudice without disrupting the schedule, and the willful nature of the disclosure each weigh strongly in favor of exclusion. Any perceived importance of the July 7 Report cannot overcome Ptheonsney pcaocnksiderations. Thus, even under , the significant prejudice, lack of cure, disruption to the schedule, and willful disregard of the Court’s Order all confirm that exclusion of the July 7 Lammering v. Korn
1:23-cv-00059-WAL-EAH Order Page 23 CONCLUSION
For the foregoing reasons, the Court finds that the July 7 Report constitutes an unauthorized rebuttal expert report served in violation of the Court’s Amended Scheduling Order. Therefore, the Court will OstRriDkeE RPElaDin tiff’s July 7 Report. AccoGrRdAinNgTlyE, Dit .i s hereby that the “Motion to Strike Rebuttal Report,” Dkt. No. 187, is ENTER:
Dated: December 11, 2025 /s/ Emile A. Henderson III EMILE A. HENDERSON III U.S. MAGISTRATE JUDGE