Bozick v. Conagra Foods, Inc.

Background

Grace Bozick brought claims against Conagra Foods, Inc. and Conagra Brands, Inc. arising from the alleged explosion of a PAM spray can in her kitchen. The claims include products liability, negligence, breach of implied warranty, and deceptive business practices under New York General Business Law § 349.

Bozick disclosed engineering experts Dr. Thomas W. Eagar and Dr. Lester Hendrickson on November 2 and 3, 2020. Hendrickson’s theory was that the can used steel that was too thin compared with the product specifications. Conagra later conducted court-authorized destructive testing of the can’s bottom and provided the measurements to both sides.

On March 3, 2021, Eagar served a second report containing seven opinions. Opinion No. 6 stated that the can-forming process created a weakness in the bottom of the subject can that was not present in the exemplar cans, reducing the pressure and temperature at which the can could fail. Conagra argued that this was a new theory, rather than a permitted supplement to Eagar’s earlier report, and that addressing it would require a different destructive-testing protocol and additional expert work.

Parties’ Arguments

Conagra moved to strike Opinion No. 6. It argued that Bozick’s original expert reports relied on the can’s overall steel thickness compared with design specifications, while Opinion No. 6 concerned thinning in a limited area caused by the can-forming process. Conagra also argued that the late disclosure prejudiced it because the testing already performed did not measure the extent of thinning around the entire circumference of the can’s disk edge.

Bozick argued that Opinion No. 6 was a supplement permitted by Federal Rule of Civil Procedure 26(e) because the thickness measurements from Conagra’s destructive testing were unavailable when Eagar prepared his original report. She also argued that striking the opinion was inappropriate because Eagar had not yet been deposed and any prejudice could be addressed with more time.

Court’s Analysis

The court explained that Rule 26(e) requires a party to timely supplement or correct an expert disclosure when the earlier disclosure is materially incomplete or incorrect. It does not allow a party to use a supplemental report to introduce a new theory after the deadline for the complete expert report. A party seeking to offer a new opinion after that deadline must instead seek modification of the scheduling order under Rule 16(b)(4) and show good cause.

The court found that Opinion No. 6 was an opinion Eagar intended to express and should have been disclosed when Bozick’s expert reports were due on November 2, 2020. The second report stated that the fundamental opinions in the original report had not changed and did not identify the earlier report as incomplete or incorrect. The court therefore concluded that Opinion No. 6 was not a proper supplement under Rule 26(e).

The court also found no good cause for the late disclosure. Bozick had access to the subject can and could have sought testing earlier. When Conagra requested destructive testing, Bozick did not join the request or ask for testing designed to support her own theory. Allowing the new opinion would potentially require another round of testing and another responsive expert report, further delaying a case in which discovery had already been extended several times.

Disposition

Judge Lewis J. Liman granted Conagra’s motion to strike Opinion No. 6. The Clerk of Court was directed to close the motion. The order addressed the timing and disclosure of expert evidence; it did not decide the underlying products-liability claims.