Marcus v. Air & Liquid Systems Corporation

Background

The order addressed several motions concerning the plaintiffs’ expert witnesses, Captain Francis Burger and Dr. Gerald Markowitz. The plaintiffs’ initial disclosures did not include the required expert reports by the February 9, 2024 deadline.

Captain Burger’s report was disclosed five court days late. The first disclosed version was unsigned, undated, and did not list his prior testimony as required by Federal Rule of Civil Procedure 26(a)(2)(B). The plaintiffs later produced a signed and dated version. Foster Wheeler Energy Corporation and other defendants moved to exclude Captain Burger under Rule 37(c)(1), which generally bars use of information or witnesses not properly disclosed unless the failure was substantially justified or harmless.

Dr. Markowitz’s report was also not timely disclosed. The plaintiffs mistakenly disclosed an appendix instead of the report and did not correct the error in later amended disclosures. Defendants learned during Markowitz’s March 20 deposition that a report existed. The plaintiffs served the report the next day, which was the final day of expert discovery, preventing defendants from preparing for or completing questioning about the opinions in the report. Air & Liquid Systems Corporation and other defendants moved to exclude Markowitz’s testimony, including on the additional ground that he was not qualified to testify as an expert.

Captain Burger’s testimony

The court found that the plaintiffs’ failure to timely and properly disclose Burger’s report was not substantially justified. The plaintiffs attributed the failure to miscommunications with Burger and the neglect and inexperience of their counsel, but the court found no circumstances outside their control that prevented compliance.

The court nevertheless found the failure harmless under Rule 37(c)(1). The defendants received the report weeks before Burger’s deposition, more than a month before the expert-discovery cutoff, and approximately seven months before trial. The court also found no demonstrated prejudice, incurable harm, likely trial disruption, or persuasive evidence of bad faith.

The court therefore DENIED Foster Wheeler’s motion to exclude Captain Burger. Instead, it ordered plaintiffs’ counsel to pay reasonable expenses, including attorney’s fees, caused by the disclosure failure. Moving defendants were directed to submit a joint declaration and supporting documentation by June 17, 2024, after which the court would determine the amount of expenses adequately supported.

Sanctions concerning the Burger deposition

The plaintiffs sought sanctions after Robert Bugatto, counsel for Foster Wheeler, suspended Burger’s deposition shortly after it began. The court had denied Foster Wheeler’s request to postpone or quash the deposition one day earlier. The court found that suspending the deposition disregarded that order and improperly attempted to obtain on its own the result Foster Wheeler had asked the court to provide.

The court GRANTED the plaintiffs’ motion for sanctions. Plaintiffs’ counsel was directed to submit a declaration and supporting documentation by June 17, 2024, concerning reasonable expenses caused by the suspension. The court would then impose sanctions on Foster Wheeler in the amount reasonably supported by the filing.

The court also ordered the parties to show cause by June 12, 2024, why expert discovery should or should not be reopened solely to allow interested defendants to depose Burger in one session of no more than seven hours. The court noted that the moving defendants had not themselves accepted Burger’s deposition and that the defendant that had accepted it appeared to have resolved its dispute with the plaintiffs.

Dr. Markowitz’s testimony

The court found that the failure to disclose Markowitz’s report was not substantially justified and was not harmless. The plaintiffs had multiple opportunities to correct the omission, including after defendants identified disclosure deficiencies. Because defendants did not have the report when they took Markowitz’s deposition and could not conduct a follow-up deposition before expert discovery closed, the court found that they were prejudiced.

The court therefore GRANTED Air & Liquid Systems Corporation’s motion to exclude Dr. Markowitz’s testimony at trial under Rule 37(c)(1). Because exclusion was warranted for the disclosure violation, the court did not reach Air & Liquid’s argument that Markowitz lacked the qualifications required under the expert-evidence standard commonly called Daubert. The court TERMINATED AS MOOT Plant Product & Supply Co.’s motion seeking the same exclusion.

Other dispositions and directives

The court TERMINATED AS MOOT the plaintiffs’ ex parte motion to extend the time for serving expert reports and Foster Wheeler’s ex parte application to strike the plaintiffs’ reply in support of their sanctions motion. The court also directed the relevant counsel to file declarations and supporting documentation concerning reasonable expenses by June 17, 2024, and required responses to the order to show cause by June 12, 2024. If the plaintiffs had not already served a version of Burger’s report containing his list of prior testimony, they were directed to do so by June 12, 2024. Counsel for the plaintiffs and Foster Wheeler were also directed to provide their clients with a copy of the order and file status reports by June 14, 2024.