1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8
10 GABRIEL CHAVEZ, et al., 11 Plaintiffs, No. C 22-06119 WHA
12 v.
13 SAN FRANCISCO BAY AREA RAPID ORDER RE DEFENDANT’S TRANSIT DISTRICT, MOTION IN LIMINE NO. 7 14 Defendant. 15
16 17 BART seeks to exclude all evidence and argument concerning work undertaken by 18 plaintiffs’ opposition expert, Dr. Harvey Risch, after the preparation of his Rule 26 report (Dkt. 19 No. 81). 20 This is not the first controversy involving Expert Risch. Earlier, BART moved to strike 21 Expert Risch’s opposition report and exclude his testimony in its entirety (Dkt. No. 58). The 22 grounds for that motion were as follows. On November 17, 2023, BART timely disclosed its 23 list of issues on which it intended to offer expert testimony (Dkt. No. 58-1 at 6-8). On January 24 16, BART again timely disclosed the opening reports of two experts: Dr. Joseph Lewnard, an 25 epidemiologist, and Nancy McClellan, an industrial hygienist (id. at 10-16). Plaintiffs’ 26 opposition reports were due on January 30. Four days before the due date, plaintiffs’ counsel 27 asked BART for more time (id. at 193-195). BART extended the professional courtesy of a 1 a two-week delay and asked for a stipulation to extend expert discovery (id. at 197). The 2 reason given was Expert Risch’s preoccupation with a “major case” (ibid.). BART declined 3 (ibid.). Plaintiffs’ counsel did not seek relief from the Court. On February 13, a paralegal 4 emailed BART the late-disclosed opposition report, two weeks late and seven days before the 5 close of expert discovery (id. at 208-209). In response, BART stated that “[i]f plaintiffs intend 6 to offer Dr. Risch as a witness, they need to seek permission from the Court. Until that 7 happens, there is no basis for a deposition” (id. at 205-206). The judge did not become aware 8 of plaintiffs’ late disclosure until BART filed its motion to strike and exclude on February 26. 9 Trial was already set for April 22, 2024. 10 In the interest of allowing plaintiffs to present their opposition, BART’s motion to strike 11 was denied (Dkt. No. 65). Plaintiffs, however, were ordered to make Expert Risch available 12 for deposition by March 13 and to pay all costs and fees caused by their delay, while 13 defendants were ordered to produce reply reports by March 14 (ibid.). Expert Risch was 14 deposed on March 13. Defendants, meanwhile, produced reply reports dated March 12 (Expert 15 McClellan) and March 13 (Expert Lewnard) (Dkt. No. 108). Trial was postponed to July 8. 16 Relatedly, plaintiffs had failed to timely file Expert Risch’s declaration in support of 17 plaintiffs’ motion for summary judgment and in opposition to defendant’s cross-motion for 18 summary judgment. Again, that declaration was nevertheless considered in the March 18 19 summary judgment order (Dkt. No. 72). 20 Moving now to the present controversy, BART seeks to exclude all evidence and 21 argument concerning additional work undertaken by Expert Risch after the preparation of his 22 late-disclosed opposition report. BART’s motion is based on facts that first came to light 23 during Expert Risch’s March 13 deposition. There, BART learned that Expert Risch had not 24 reviewed the Rule 26 reports of BART’s experts Lewnard or McClellan when drafting his 25 opposition (Risch Depo. at 64:7-15, 67:15-18, 98:2-22). As to McClellan, Expert Risch 26 conceded outright that he did not review any of her work product when writing his 27 “opposition,” and that the latter “doesn’t address Ms. McClellan’s report in any manner” (id. 1 analyzing Lewnard’s opening report prior to preparing his opposition (id. at 64:13-15). 2 However, it was discovered during deposition that plaintiffs’ counsel had never given Expert 3 Risch Lewnard’s report: they had instead sent him Lewnard’s summary judgment declaration 4 (id. at 98:2-22). 5 After the submission of his late-disclosed report, but before his deposition, Expert Risch 6 read Lewnard’s summary judgment declaration “more carefully,” and read McClellan’s 7 summary judgment declaration for the first time (again under the belief that these were their 8 respective opening reports) (id. at 66:2-19). As a result, he came to his deposition armed with 9 new opinions not contained within his opposition report (id. at 66:9-68:23). Those opinions 10 were embodied in a set of written notes that Expert Risch shared with BART’s counsel during 11 his deposition (Dkt. No. 85 at 950-953). He stated that the opinions above the dashed lines 12 were “done contemporaneous or before I prepared my report,” while everything below “was 13 done after I prepared my report” (Risch Depo. at 68:21-23). 14 BART now asks that Expert Risch’s testimony be limited to those matters stated in his 15 (late) opposition report. They request that: 16 “Dr. Risch should not be permitted to testify concerning the additional criticisms of Dr. Lewnard’s work that he developed after 17 preparing his Rule 26 report.”
18 “Dr. Risch [should not] be permitted to testify that he reviewed and considered Dr. Lewnard’s report, because he had not done so when 19 preparing his own report or even before his deposition.”
20 “Dr. Risch should not be permitted to testify concerning any criticisms of McClellan’s work. He did not review any of her 21 work before preparing his own Rule 26 report, and [he] did not review her report at all before his own deposition.” 22 (Dkt. No. 81 at 5). 23 “[A] party must disclose to the other parties the identity of any witness it may use at trial 24 to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 25 26(a)(2)(A). “[T]his disclosure must be accompanied by a written report—prepared and 26 signed by the witness—if the witness is one retained or specially employed to provide expert 27 1 statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. 2 Civ. P. 26(a)(2)(B)(i). 3 A party “must supplement or correct its disclosure . . . in a timely manner if the party 4 learns that in some material respect the disclosure . . . is incomplete or incorrect, and if the 5 additional or corrective information has not otherwise been made known to the other parties 6 during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). The duty to supplement 7 disclosures “extends both to information included in the [expert] report and to information 8 given during the expert's deposition.” Fed. R. Civ. P. 26(e)(2). “A party may not cure a failure 9 to disclose an expert opinion in a written report by supplementing the expert's disclosure with 10 later deposition testimony.” Foshee v. Zuniga, 2021 WL 1947560, at *8 (N.D. Cal. May 14, 11 2021) (Judge Virginia DeMarchi). A party that “fails to provide information or identify a 12 witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to 13 supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 14 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The violating party bears the burden of 15 showing substantial justification or harmlessness. Yeti by Molly, Ltd. v. Deckers Outdoor 16 Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8
10 GABRIEL CHAVEZ, et al., 11 Plaintiffs, No. C 22-06119 WHA
12 v.
13 SAN FRANCISCO BAY AREA RAPID ORDER RE DEFENDANT’S TRANSIT DISTRICT, MOTION IN LIMINE NO. 7 14 Defendant. 15
16 17 BART seeks to exclude all evidence and argument concerning work undertaken by 18 plaintiffs’ opposition expert, Dr. Harvey Risch, after the preparation of his Rule 26 report (Dkt. 19 No. 81). 20 This is not the first controversy involving Expert Risch. Earlier, BART moved to strike 21 Expert Risch’s opposition report and exclude his testimony in its entirety (Dkt. No. 58). The 22 grounds for that motion were as follows. On November 17, 2023, BART timely disclosed its 23 list of issues on which it intended to offer expert testimony (Dkt. No. 58-1 at 6-8). On January 24 16, BART again timely disclosed the opening reports of two experts: Dr. Joseph Lewnard, an 25 epidemiologist, and Nancy McClellan, an industrial hygienist (id. at 10-16). Plaintiffs’ 26 opposition reports were due on January 30. Four days before the due date, plaintiffs’ counsel 27 asked BART for more time (id. at 193-195). BART extended the professional courtesy of a 1 a two-week delay and asked for a stipulation to extend expert discovery (id. at 197). The 2 reason given was Expert Risch’s preoccupation with a “major case” (ibid.). BART declined 3 (ibid.). Plaintiffs’ counsel did not seek relief from the Court. On February 13, a paralegal 4 emailed BART the late-disclosed opposition report, two weeks late and seven days before the 5 close of expert discovery (id. at 208-209). In response, BART stated that “[i]f plaintiffs intend 6 to offer Dr. Risch as a witness, they need to seek permission from the Court. Until that 7 happens, there is no basis for a deposition” (id. at 205-206). The judge did not become aware 8 of plaintiffs’ late disclosure until BART filed its motion to strike and exclude on February 26. 9 Trial was already set for April 22, 2024. 10 In the interest of allowing plaintiffs to present their opposition, BART’s motion to strike 11 was denied (Dkt. No. 65). Plaintiffs, however, were ordered to make Expert Risch available 12 for deposition by March 13 and to pay all costs and fees caused by their delay, while 13 defendants were ordered to produce reply reports by March 14 (ibid.). Expert Risch was 14 deposed on March 13. Defendants, meanwhile, produced reply reports dated March 12 (Expert 15 McClellan) and March 13 (Expert Lewnard) (Dkt. No. 108). Trial was postponed to July 8. 16 Relatedly, plaintiffs had failed to timely file Expert Risch’s declaration in support of 17 plaintiffs’ motion for summary judgment and in opposition to defendant’s cross-motion for 18 summary judgment. Again, that declaration was nevertheless considered in the March 18 19 summary judgment order (Dkt. No. 72). 20 Moving now to the present controversy, BART seeks to exclude all evidence and 21 argument concerning additional work undertaken by Expert Risch after the preparation of his 22 late-disclosed opposition report. BART’s motion is based on facts that first came to light 23 during Expert Risch’s March 13 deposition. There, BART learned that Expert Risch had not 24 reviewed the Rule 26 reports of BART’s experts Lewnard or McClellan when drafting his 25 opposition (Risch Depo. at 64:7-15, 67:15-18, 98:2-22). As to McClellan, Expert Risch 26 conceded outright that he did not review any of her work product when writing his 27 “opposition,” and that the latter “doesn’t address Ms. McClellan’s report in any manner” (id. 1 analyzing Lewnard’s opening report prior to preparing his opposition (id. at 64:13-15). 2 However, it was discovered during deposition that plaintiffs’ counsel had never given Expert 3 Risch Lewnard’s report: they had instead sent him Lewnard’s summary judgment declaration 4 (id. at 98:2-22). 5 After the submission of his late-disclosed report, but before his deposition, Expert Risch 6 read Lewnard’s summary judgment declaration “more carefully,” and read McClellan’s 7 summary judgment declaration for the first time (again under the belief that these were their 8 respective opening reports) (id. at 66:2-19). As a result, he came to his deposition armed with 9 new opinions not contained within his opposition report (id. at 66:9-68:23). Those opinions 10 were embodied in a set of written notes that Expert Risch shared with BART’s counsel during 11 his deposition (Dkt. No. 85 at 950-953). He stated that the opinions above the dashed lines 12 were “done contemporaneous or before I prepared my report,” while everything below “was 13 done after I prepared my report” (Risch Depo. at 68:21-23). 14 BART now asks that Expert Risch’s testimony be limited to those matters stated in his 15 (late) opposition report. They request that: 16 “Dr. Risch should not be permitted to testify concerning the additional criticisms of Dr. Lewnard’s work that he developed after 17 preparing his Rule 26 report.”
18 “Dr. Risch [should not] be permitted to testify that he reviewed and considered Dr. Lewnard’s report, because he had not done so when 19 preparing his own report or even before his deposition.”
20 “Dr. Risch should not be permitted to testify concerning any criticisms of McClellan’s work. He did not review any of her 21 work before preparing his own Rule 26 report, and [he] did not review her report at all before his own deposition.” 22 (Dkt. No. 81 at 5). 23 “[A] party must disclose to the other parties the identity of any witness it may use at trial 24 to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 25 26(a)(2)(A). “[T]his disclosure must be accompanied by a written report—prepared and 26 signed by the witness—if the witness is one retained or specially employed to provide expert 27 1 statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. 2 Civ. P. 26(a)(2)(B)(i). 3 A party “must supplement or correct its disclosure . . . in a timely manner if the party 4 learns that in some material respect the disclosure . . . is incomplete or incorrect, and if the 5 additional or corrective information has not otherwise been made known to the other parties 6 during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). The duty to supplement 7 disclosures “extends both to information included in the [expert] report and to information 8 given during the expert's deposition.” Fed. R. Civ. P. 26(e)(2). “A party may not cure a failure 9 to disclose an expert opinion in a written report by supplementing the expert's disclosure with 10 later deposition testimony.” Foshee v. Zuniga, 2021 WL 1947560, at *8 (N.D. Cal. May 14, 11 2021) (Judge Virginia DeMarchi). A party that “fails to provide information or identify a 12 witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to 13 supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 14 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The violating party bears the burden of 15 showing substantial justification or harmlessness. Yeti by Molly, Ltd. v. Deckers Outdoor 16 Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). In plaintiffs’ counsel’s words, “how counsel have 17 conducted themselves to that point,” and whether they have displayed a “cavalier approach to 18 the rules” is of “particular[ ]” importance to the Rule 37 inquiry (Audiotape: Mar. 6, 2024, 19 Motion Hearing, 21:40). 20 This is now the second time that plaintiffs have attempted to skirt the rules and sandbag 21 BART. The first time around, plaintiffs were allowed to file a late opposition report on 22 condition that the expert sit for a deposition (among other conditions). However, plaintiffs’ 23 attempt to again sandbag BART at that very deposition will not be allowed. 24 Expert Risch’s direct testimony at trial will be limited to the contents of his opposition 25 report. Any opinions not contained within the four corners of the report are out for purposes of 26 direct examination. New opinions contained in the portion of Expert Risch’s deposition notes 27 prepared after the submission of his opposition report (those “under the dashed line”) are 1 to evaluate those opinions, or to respond to them in their own replies, which were prepared 2 prior to Expert Risch’s deposition. Nor was BART’s counsel afforded a reasonable 3 opportunity to test these new opinions at deposition. 4 The problem of Expert Risch having read the declaration, rather than the report, of Expert 5 Lewnard is not fatal, though it can be raised on cross-examination. Likewise, the problem of 6 never having read any of Expert McClellan’s work can be addressed on cross-examination. 7 What is fatal, after one forgiveness of lateness, is being late again with a batch of new 8 opinions. The latter are excluded on direct examination of Expert Risch. On cross- 9 examination of Expert Risch, however, if BART’s counsel asks a question that implicates 10 matters outside the opposition report, then, of course, the answer of Expert Risch may go 11 beyond the four corners of his report. 12 Now a warning to BART. At trial, Experts Lewnard and McClellan will be limited on 13 direct examination to what is in their opening reports. If BART’s direct examination of 14 Lewnard or McClellan strays beyond the four corners of their reports, then counsel may be 15 allowed equal latitude in their direct examination of Expert Risch. The cross-examination of 16 BART’s experts will, of course, be limited to the scope of the direct examination, but not 17 necessarily to the four corners of the witness’s report. 18 In that connection, Expert Risch must testify in plaintiffs’ case on rebuttal, after Lewnard 19 and McClellan. The opinions contained in Lewnard and McClellan’s reply reports must, in 20 turn, be reserved for sur-rebuttal. 21 22 IT IS SO ORDERED. 23 24 Dated: June 21, 2024 25 26 WILLIAM ALSUP 27 UNITED STATES DISTRICT JUDGE