Potomac Electric Power Co. v. Electric Motor Supply, Inc.

192 F.R.D. 511, 46 Fed. R. Serv. 3d 1274, 2000 U.S. Dist. LEXIS 9528, 2000 WL 708923
CourtDistrict Court, D. Maryland
DecidedApril 17, 2000
DocketNo. CIV.A.S-98-2519
StatusPublished
Cited by3 cases

This text of 192 F.R.D. 511 (Potomac Electric Power Co. v. Electric Motor Supply, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potomac Electric Power Co. v. Electric Motor Supply, Inc., 192 F.R.D. 511, 46 Fed. R. Serv. 3d 1274, 2000 U.S. Dist. LEXIS 9528, 2000 WL 708923 (D. Md. 2000).

Opinion

MEMORANDUM AND ORDER

GESNER, United States Magistrate Judge.

Presently pending is Defendants’ Motion for Appropriate Relief which, in essence, seeks reconsideration of this Court’s November 29, 1999 Memorandum Opinion and Order granting Plaintiffs’ Motion to Amend the Scheduling Order so as to allow the late designation of an expert witness. Also pending are Plaintiffs Opposition and Defendants’ Reply. (Paper Nos. 56, 58,and 59, respectively). This case has been referred to the undersigned for resolution of discovery disputes. 28 U.S.C. § 636(b) and Local Rule 301. No hearing is necessary. Local Rule 105.6. For the reasons stated below, defendants’ motion is denied.

A. Background

On November 29, 1999, the Court issued a Memorandum Opinion and Order granting the Plaintiffs Motion to Amend the Scheduling Order to Designate an Expert Witness, Keith Flohr. (Paper Nos. 50 and 51).1 In discussing plaintiffs claim that its failure to designate Mr. Flohr was a result of “inadvertent neglect”, the Court expressed its concern regarding plaintiffs handling of the matter. (Id. at 8). Notwithstanding that concern, however, the Court focused on the law applicable to the question of whether to exclude an expert witness who had not been disclosed in accordance with a scheduling order. (Id.) After a full analysis of the pertinent law, the Court concluded that the late designation of Mr. Flohr by plaintiff should be permitted and, therefore, granted Plaintiffs Motion to Amend the Scheduling Order. (Id. at ll).2

Defendants filed objections to this Court’s decision with the Honorable Frederic N. Smalkin who, by Order dated December 15, 1999, overruled defendants’ objections. (Paper No. 54). In concluding that this Court’s ruling were neither clearly erroneous nor contrary to law, Judge Smalkin noted that “[although adherence to scheduling orders is important, it is more important that a party not suffer on account of an attorney’s inattention, at least where there is no prejudice to the other side that cannot be cured. In [513]*513this case, there is no such lasting prejudice.” (I&). Defendants’ pending Motion for Appropriate Relief, in essence, seeks reeonsideration of this Court’s previous ruling which was affirmed by Judge Smalkin. For the reasons stated below, defendants have not offered any reasons to merit reconsideration of this Court’s previous ruling and, therefore, defendants’ motion should be denied.

B. Discussion

In Defendants’ Motion for Appropriate Relief, defendants maintain that evidence they have learned about since the Court issued its Memorandum Opinion establishes that the plaintiffs failure to name its expert was not “inadvertent” as this Court was led to believe and which resulted in the Court allowing plaintiff to belatedly designate Mr. Flohr. (Paper No. 56 at 2-A). Defendants appear to offer the following arguments in support of their request to exclude3 Mr. Flohr’s testimony: 1) the failure to designate Mr. Flohr could not have been “inadvertent” because plaintiffs’ counsel did not even speak with Mr. Flohr until late August or possibly September, 1999 (Id. at 8); 2) the theories espoused in Mr. Flohr’s letters (which plaintiff represented as being his opinions, including at the deposition of plaintiffs Rule 30(b)(6) witness), were different from those disclosed by him in his January 28, 2000 deposition (Id. at 3); 3) the testimony of Mr. Flohr pertains to eight (8) motors which are not the subject of the Complaint in this case4 *(Id. at 7); and 4) the samples allegedly tested by Mr. Flohr in 1994 were not properly preserved by plaintiff and that this “spoliation” of evidence mandates the exclusion of the expert opinions based on the “lost” evidence (Id. at 8).

The Court has considered the parties’ submissions regarding the pending motion and concludes that defendants have not offered any reasons for the Court to reconsider its Memorandum Opinion of November 29, 1999 and strike the expert designation of Mr. Flohr. As discussed below, the Court rejects each of the reasons proffered by defendants in support of their request to strike Mr. Flohr as an expert.

First, with respect to defendants’ argument that plaintiffs neglect was not inadvertent, plaintiff responds that it has already profered that the errors resulting in “inadvertent neglect” were made by a former associate and that this Court adequately addressed the issue in its November 29, 1999 Opinion. Moreover, plaintiff argues that defendants’ arguments are “baseless in fact” in that plaintiff actually retained Mr. Flohr in 1994, not after it advised the Court that it had “inadvertently neglected” to designate him as a witness.5

The Court agrees that it has fully addressed the issue of “inadvertent neglect” in its November 29, 1999 Opinion and nothing in defendants’ papers convinces the Court that its discussion of the issue should be revisited. Specifically, it is clear from the rqcord that Mr. Flohr was hired in 1994 to do sample testing and whether he was formally rehired (if indeed he actually needed to be rehired) to testify at the trial of this case and do additional testing in August or September 1999 is of no consequence. The Court accepts the facts as recited by defendants and does not believe that those facts establish that the Court was misled when it issued its November 29, 1999 opinion. In sum, defendants’ argument merely confirms the Court’s view that the failure to timely designate Mr. [514]*514Flohr as an expert was the product of neglect.6

Nor does the Court accept defendants’ argument that Mr. Flohr’s testimony-should be excluded because he made changes to the opinions set forth in his July 11, 1994 opinion letter during his deposition on January 28, 2000. (Paper No. 56 at 3). While any alleged “changes” to Mr. Flohr’s opinions may offer fertile ground for cross-examination at trial, the Court does not believe that any such “changes” mandate the exclusion of Mr. Flohr’s testimony. Indeed, as plaintiff points out, Federal Rule of Civil Procedure 26(e)(1) specifically requires the supplementation or correction of expert opinions. Whether Mr. Flohr’s deposition testimony is characterized as supplemental, corrective or additional, it is clear that the changes to his opinion were “both technically timely, and sufficiently in advance of trial that [they] cannot fairly be characterized as ambush tactics.” Tucker v. Ohtsu Tire & Rubber Co., Ltd., 49 F.Supp.2d 456, 461 (D.Md.1999). The “changed” opinions of Mr. Flohr offer no basis for exclusion of his testimony.

Defendants also argue that Mr. Flohr should not be permitted to testify because the eight (8) motors which he tested in 1999 are not among those specifically listed in the Complaint. (Paper No. 56 at 7). A review of the Complaint, however, refutes defendants’ argument in that the Complaint makes clear that all motors repaired by the defendants are the subject of the lawsuit. (Paper No. 1 at ¶¶ 17-19). Nor does the listing of certain motors in the Complaint, as defendants claim, somehow limit plaintiffs proof to only those motors listed. See 5 C. Wright & A. Miller,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lewis v. Booz-Allen & Hamilton, Inc.
150 F. Supp. 2d 81 (District of Columbia, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
192 F.R.D. 511, 46 Fed. R. Serv. 3d 1274, 2000 U.S. Dist. LEXIS 9528, 2000 WL 708923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potomac-electric-power-co-v-electric-motor-supply-inc-mdd-2000.