Lopez v. Council on American-Islamic Relations Action Network, Inc.

• Court: District Court, District of Columbia
• Decided: August 14, 2017
• Docket: Civil Action No. 2010-0023
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IFTIKHAR SAIYED,

Plaintiff,

v. Civil Action No. 10-22 PLF/DAR COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC.,

Defendant.

RENE ARTURO LOPEZ, et al.,

Plaintiffs,

v. Civil Action No. 10-23 COUNCIL ON AMERICAN-ISLAMIC PLF/DAR RELATIONS ACTION NETWORK, INC.,

MEMORANDUM OPINION AND ORDER

These consolidated actions were referred to the undersigned United States Magistrate

Judge for management of discovery. See Order (ECF No. 113; ECF No. 116). Currently pending

for determination are Defendant’s Motion to Strike the Expert Reports of Mr. Joseph E. Schmitz

and Dr. Ron Kimball (“Defendant’s Motion”) (ECF No. 118; ECF No. 122) and Plaintiffs’

Opposition to Defendant’s Motion (“Plaintiffs’ Opposition”) (ECF No. 121). Upon consideration

of the motion, the memoranda in support thereof and in opposition thereto, the reply (ECF No.

123; ECF No. 125), and the entire record herein, Defendant’s motion will be denied. Lopez, et al., v. CAIR Action Network, Inc. 2

BACKGROUND

These actions concern claims made by Plaintiffs against Defendant, Council for American-

Islamic Relations Network, Inc., alleging fraud, breach of fiduciary duty, intentional infliction of

emotional distress, and violations of the District of Columbia Consumer Protection Procedures Act

(“DCCPPA”) and the Virginia Consumer Protection Act (“VCPA”), arising from Plaintiffs’

attempts to seek legal representation from Defendant. Complaint (ECF No. 1); Amended

Complaint (ECF No. 3; ECF No. 5). Since the filing of Plaintiffs’ original complaints on January

6, 2010, these actions have proceeded through various stages of discovery, mediation, dispositive

motions practice, and appellate practice. On January 29, 2015, the assigned United States District

Judge granted Defendant’s motion for summary judgment and entered judgment in favor of

Defendant. See Opinion (ECF No. 93; ECF No. 97). On February 12, 2017, Plaintiffs appealed

the decision of the District Court to the District of Columbia Circuit. See Notice of Appeal (ECF

No. 94; ECF No. 99). Upon review, the Circuit reversed the District Court’s grant of summary

judgment in favor of Defendant, finding that genuine issues of material fact remained in the case,

and remanded the matter for further proceedings. Mandate (ECF No. 100; ECF No. 106). A

further explication of the underlying facts, the procedural history, and the grounds for reversal can

be found in the Circuit’s opinion (Wilkins, J.). See Lopez v. Council on American–Islamic

Relations Action Network, Inc., 826 F.3d 492 (D.C. Cir. 2016). The pertinent procedural history

will be briefly discussed herein.

PROCEDURAL HISTORY

Following the decision of the Circuit, the assigned District Judge ordered the parties to

jointly file a status report and appear before the court for a status conference on October 5, 2016. Lopez, et al., v. CAIR Action Network, Inc. 3

08/10/2016 Minute Order. During the status conference, the parties articulated which claims they

believed remained at issue for trial, and offered their positions regarding further fact and expert

discovery. See 10/5/2016 Transcript. The District Judge ordered that the parties proceed to trial

on three remaining causes of action: (1) common law fraud under Virginia law; (2) common law

breach of fiduciary duty under Virginia law; and (3) any alleged violation of the Virginia

Consumer Protection Act, Va. Code Ann. § 59.1-196 et seq. The District Judge also ordered that

the period for fact discovery was closed and that with respect to expert discovery, Plaintiffs were

limited to the two expert witnesses identified during the status conference. Memorandum Opinion

and Order (ECF No. 108). Subsequently, the District Judge entered a scheduling order which

required that expert reports be filed no later than February 27, 2017, and that the parties file any

motion to strike the opposing party’s expert(s) or portions of any expert’s report no later than

March 27, 2017. See Order (ECF No. 110; ECF No. 112). 1 On February 24, 2017, these actions

were referred to the undersigned United States Magistrate Judge for further management of

discovery. Order (ECF No. 113; ECF No. 116). 2 On April 24, 2017, Defendant filed its motion,

and corresponding memorandum, to strike the expert reports of Mr. Joseph E. Schmitz and Dr.

Ron Kimball. See generally Defendant’s Motion. 3 After the grant of an extension of time to file,

1 The parties jointly moved to extend the deadlines for expert discovery on May 1, 2017. See Joint Motion for Extension of Time to Complete Service of Expert Discovery Documents (ECF No. 111). The court granted the parties’ request and adopted the proposed schedule. See Order (ECF No. 112; ECF No. 115). 2 After these matters were referred to the undersigned, the parties moved for an additional extension of time to file their respective motion and opposition, which the undersigned granted. See Joint Motion for Extension of Time to File Motion to Strike Expert Report and Disclose Rebuttal Experts (ECF No. 115); 04/03/2017 Minute Order; Joint Motion for Extension of Time to File Response/Reply (ECF No. 119, ECF No. 123); Order (ECF No. 120; ECF No. 124). 3 The undersigned observes, as Defendant indicates in its motion, that the assigned District Judge did refer to a “motion to strike” as a permissible means by which Defendant might challenge the propriety of portions of the expert reports offered by Plaintiffs. See Transcript (ECF No. 114; ECF No. 116) at 28:10-16. Lopez, et al., v. CAIR Action Network, Inc. 4

Plaintiffs filed their opposition to Defendant’s motion and Defendant subsequently filed its reply.

See generally Plaintiffs’ Opposition; Defendant’s Reply to Opposition.

CONTENTIONS OF THE PARTIES

Defendant seeks to strike “in its entirety” each of the two expert reports authored by Joseph

E. Schmitz, Esq., and portions of the five expert reports submitted by Dr. Ron Kimball, PhD, CGP,

pursuant to Federal Rules of Civil Procedure 12 and 37(c)(1). Defendant’s Motion at 1. 4 With

respect to the Founding Report, authored by Mr. Schmitz, Defendant asserts that the entire report

should be stricken because the content of the report “addresses matters irrelevant to the case

proceeding to trial before the Court [and] even if relevant under the Federal Rules of Evidence,

the subject matter of the Founding Report is far more prejudicial than probative on any matter

before the court and epitomizes unfair prejudice and misleading the jury.” Id. at 2. (internal

quotations omitted). Defendant also asserts that the Founding Report, “even if offered solely as

corporate character evidence, [] would not meet the appropriate standard for character evidence.”

Id. (internal quotations omitted). Next, Defendant moves to strike Mr. Schmitz’s second expert

report, the Ethics Report, in its entirety because it “in parts, contains impermissible legal

conclusions; [] provides expert testimony unlinked to any appropriate standards . . . [,]

inappropriate opinions on state of mind issues . . . impermissible expert opinion on the character

or credibility of witnesses; and . . . expert opinion on irrelevant matters, the total sum of which

leaves no part of the Ethics Report appropriate for testimony before a jury.” Id. (internal quotations

omitted). Last, Defendant challenges the propriety of the Psych Reports authored by Dr. Kimball,

4 Defendant divides its argument as to each report, identifying the two reports authored by Mr. Schmitz as the “Founding Report” and the “Ethics Report[,]” and the reports authored by Dr. Kimball as the “Psych Reports[.]” Defendant’s Motion at 1-2. Lopez, et al., v. CAIR Action Network, Inc. 5

arguing that Plaintiffs failed to provide the underlying data upon which Dr. Kimball relied, as

required by Rule 26(a)(2)(B)(ii) of the Federal Rules of Civil Procedure, and that the reports

contain improper legal conclusions. Defendant’s Memorandum at 33-34.

In opposition, Plaintiffs assert that Defendant’s motion is “overbroad, overreaching, and a

studied denial of the extensive undisputed factual record.” Plaintiffs’ Opposition at 1. More

specifically, as it pertains to the Founding Report, Plaintiffs argue that the expert opinion rendered

by Mr. Schmitz is relevant to CAIR’s proclaimed “status as a civil rights organization dedicated

to fighting for the civil rights of Muslim Americans is central to this case.” Plaintiffs’ Opposition

at 11 (citing Defendant’s Memorandum at 9) (“CAIR National’s existence as an American-Muslim

rights and advocacy group, and its chapter CAIR-VA’s role in fulfilling that purpose, are at the

core of this case. Indeed, every one of the Plaintiffs testified in their depositions that they were

drawn to Mr. Days and CAIR-VA at least in part because of its serving as a Muslim rights and

advocacy group.”)). In response to Defendant’s assertion that the Ethics Report should be stricken

in its entirety because it contains impermissible legal conclusions, Plaintiffs suggest that the more

appropriate resolution of a dispute over the admissibility of any portion of the Ethics Report would

be to request that the court issue an order requiring Plaintiffs to cure any deficiencies in the report,

rather than strike the entire report. Defendant’s Memorandum at 13. 5 In response to Defendant’s

contentions regarding the striking of the Psych Reports, Plaintiffs contend that the inadvertent loss

of portions of the data used to prepare Dr. Kimball’s 2011 Initial Reports does not render the

reports infirm in their entirety either. Id. at 24-25. Rather, Plaintiffs assert that the more

appropriate courses of action, if disputes remain regarding the evidentiary support for Dr.

5 Plaintiffs did presumably concede the impropriety of portions of the report and “withdr[e]w entirely Mr. Schmitz’s expert opinions regarding legal and ethical duties numbered 2 through 6 and 9 through 10 [and] the ‘Preparatory Remarks’ contained at the beginning of Mr. Schmitz’s report[,]” preliminarily, but opinions 1, 7, and 8 remain. Id. at 14. Lopez, et al., v. CAIR Action Network, Inc. 6

Kimball’s opinions, would be for Defendant to file a motion in limine challenging the admissibility

of any testimony offered by Dr. Kimball regarding the 2011 Initial Reports, raise concerns

regarding the reports during Dr. Kimball’s deposition, secure a rebuttal expert of its own to refute

the opinions contained in the Psych Reports, or file a Daubert motion. Id.

In reply, Defendant re-asserts the contentions asserted in its motion, highlights Plaintiffs’

concession regarding portions of the Ethics Report, see supra note 5, and asserts that any challenge

to other contentions made in its motion are now waived due to Plaintiffs’ failure to address them

in their response, pursuant to Local Civil Rule 7(b). Defendant’s Reply at 1-3.

APPLICABLE STANDARD

Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.

P. 12(f) (emphasis added). The court may act sua sponte or “by motion made by a party either

before responding to the pleading or, if a response is not allowed, within 21 days after being served

with the pleading.” Id. Such decisions are within the sound discretion of the trial court and are

generally disfavored. See Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 224 F.R.D. 261, 263

(D.D.C. 2004); U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am., 474 F. Supp. 2d 75, 79

(D.D.C. 2007); see also Barnes v. D.C., 289 F.R.D. 1, 26 (D.D.C. 2012) (finding that motions to

strike expert reports are “highly disfavored”).

Expert reports are governed by Federal Rule of Civil Procedure 26, which requires that a

written report accompany an initial disclosure of the identity of any expert witness that a party

intends to present at trial. Fed. R. Civ. P. 26(a)(2)(A)-(B). The written expert report, prepared

and signed by the witness, must contain: (1) a complete statement of all opinions the witness will Lopez, et al., v. CAIR Action Network, Inc. 7

express and the basis and reasons for them; (2) the facts or data considered by the witness in

forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s

qualifications, including a list of all publications authored in the previous 10 years; (5) a list of all

other cases in which, during the previous 4 years, the witness testified as an expert at trial or by

deposition; and (6) a statement of the compensation to be paid for the study and testimony in the

case. Fed. R. Civ. P. 26(a)(2)(A)-(B)(i)-(vi).

If a party fails to comply with the disclosure requirements provided by Rule 26(a), that

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 is harmless, and the opposing party

may request additional or alternative sanctions. Fed. R. Civ. P. 37(c)(1).

DISCUSSION

Defendant moves to strike Plaintiffs’ expert reports, pursuant to Federal Rule of Civil

Procedure 12(f). This court, however, has previously held, on numerous occasions, that such a

request, as it pertains to expert reports, is misplaced. See Paige Int'l, Inc. v. XL Specialty Ins. Co.,

No. CV 14-1244 (JEB), 2016 WL 3024008, at *2 (D.D.C. May 25, 2016) (citing U.S. ex rel. Pogue

v. Diabetes Treatment Centers of Am., 474 F. Supp. 2d 75, 80 (D.D.C. 2007)) (“[A] Rule 26(a)(2)

expert disclosure is neither testimony nor a pleading, and therefore could not properly be stricken

under Rule 12(f).”) (internal quotations omitted); contra Barnes, 289 F.R.D. at 6 (citing U.S. ex

rel. Pogue, 474 F. Supp. 2d at 79). Like the court in Paige Int’l, the undersigned knows of no

authority which would permit the characterization of an expert report prepared pursuant to Rule

26(a)(2) as a “pleading.” Id. at No. CV 14-1244 (JEB), 2016 WL 3024008, at *2; see also Fed. R.

Civ. P 7(a) (defining “pleadings”). Moreover, the undersigned knows of no instance in which an Lopez, et al., v. CAIR Action Network, Inc. 8

expert report would be entered into the record or filed on the docket, but for its attachment to a

motion such as the one filed by Defendant, to occasion it to be stricken. For these reasons, and

those expressed by this court in U.S. ex rel. Pogue, the undersigned finds that Plaintiffs’ expert

reports are “in no position to be stricken at all” and as for any “objections to the admissibility of

certain sections of the report, [Defendant’s] remedy is to raise those objections to specific

questions or testimony if and when [the experts] testifies, not in a motion to strike the entire expert

report.” Id., 474 F. Supp. 2d at 80.

Specifically, the undersigned finds that Defendant’s challenge to the admissibility of

“inappropriate, irrelevant and scandalous” character evidence contained in the Founding Report is

premature, as Defendant has not yet deposed Mr. Schmitz, nor have Plaintiffs confirmed at this

point in the discovery proceedings which portions of Mr. Schmitz’s opinion, if any, they seek to

offer at trial. Any broad evidentiary challenge seeking to prohibit or limit the testimony of

Plaintiffs’ expert as to either character evidence or the modus operandi of Defendant’s

organization, should be raised through a motion in limine.

Defendant’s concerns regarding the presence of legal conclusions in the Ethics Report, is

not without merit, as Plaintiffs have already conceded the impropriety of portions of Mr. Schmitz’s

Ethics Report. However, a request to strike the report in its entirety because of these potentially

inadmissible opinions, is overbroad, as Plaintiffs contend. In Iacangelo v. Georgetown Univ., 560

F. Supp. 2d 53, 59 (D.D.C. 2008), this court found that a number of the legal expert reports offered

by the plaintiff contained “impermissible legal conclusions and the prejudice in allowing such

experts to testify clearly outweigh[ed] any probative value of their testimony.” However, the court

advised that “exclusion of all such testimony from the expert reports would require such reports to

be revised and perhaps rewritten because such legal conclusions and state of mind opinions are Lopez, et al., v. CAIR Action Network, Inc. 9

commingled with permissible expert medical testimony. . . .” The court suggested “[a]lternatively,

in the interest of judicial efficiency and economy. . . that imposing actual limitations on the scope

of expert testimony be addressed in the form of a motion in limine immediately prior to trial . . .

and after Plaintiffs have determined whether they will use [the experts].” The undersigned agrees.

Finally, as to the Psych Reports offered by Dr. Kimball, Defendant concedes that during

the meet and confer process, the parties offered and accepted “supplemental Fed. R. Civ. P.

26(a)(2)(B) disclosures regarding Dr. Kimball’s compensation . . . in lieu of motions practice . . .

[and] also agreed to continue to work with Plaintiffs’ counsel to determine whether certain medical

reports exist and were relied on by Dr. Kimball, and thus brings no motion on that issue at the

present time.” Defendant’s Memorandum at 4, n. 4. Based on the parties’ prior cooperation, the

undersigned sees no basis upon which to strike portions of Dr. Kimball’s reports at this time, as

both parties have agreed to provide and accept supplementation to cure the deficiencies raised thus

far. In the alternative, the court provides the parties the opportunity to request, by motion, or to

provide, without the court’s intervention, any additional documentation to supplement the opinions

contained in Plaintiffs’ expert reports and cure any deficiencies in the reports identified by

Defendant. See Fed. R. Civ. P. 26(e) (“A party who has made a disclosure under Rule 26(a) . . .

must supplement or correct its disclosure or response in a timely manner if the party learns that in

some material respect the disclosure or response is incomplete or incorrect, and if the additional

or corrective information had not otherwise been made known to the parties during the discovery

process or in writing; or as ordered by the court.”).

Even if the undersigned were to consider Defendant’s motion to strike under Federal Rule

of Civil Procedure 12(f), this court has repeatedly held that motions to strike are “strongly

disfavored and require the Court to consider alternatives.” Barnes, 289 F.R.D. at 26. Thus, the Lopez, et al., v. CAIR Action Network, Inc. 10

following alternatives are proposed by the court. Given the procedural posture of the discovery

proceedings, the court finds that the opportunity remains for Defendant to depose either or both of

Plaintiffs’ experts, prepare to offer the testimony of a rebuttal expert in opposition to any opinions

offered by Plaintiffs’ experts and file a motion in limine challenging the admissibility of any

remaining portions of the expert reports that have not been withdrawn, supplemented, or corrected.

Should any concerns regarding admissibility or the conformity of Plaintiffs’ expert reports or the

testimony of Plaintiffs’ experts to the applicable rules arise, the parties are free to file the

appropriate motions for review by the court prior to trial.

CONCLUSION

For the reasons set forth herein, the undersigned concludes that Defendant’s Motion to

Strike (ECF No. 118; ECF No. 122) is premature and the issues raised are more aptly addressed

by the filing of a motion in limine after expert discovery has been completed, if deficiencies with

Plaintiffs’ expert reports remain. Therefore, it is, this 14th day of August, 2017,

ORDERED that Defendant’s motion is DENIED.

/s/______________ DEBORAH A. ROBINSON United States Magistrate Judge