Trombetta v. Novocin

Background

Annamarie Trombetta, who represented herself, brought claims concerning a 1972 painting that defendants allegedly advertised and sold while falsely claiming that Trombetta had painted it. The opinion states that her claims included claims under the Digital Millennium Copyright Act and the Visual Artists Rights Act, among others. This order addressed only WorthPoint Corp.’s motion to exclude two of Trombetta’s proposed experts, Dr. Joseph V. Scelsa and Gayle Skluzacek.

The court-ordered deadline for Trombetta’s expert disclosures was December 19, 2022. Trombetta provided the experts’ resumes during the discovery period, but the court had told her that resumes alone were insufficient under Federal Rule of Civil Procedure 26(a)(2). The experts’ reports were signed on February 16 and February 21, 2023. Trombetta later sought to use the reports in support of summary judgment and at trial, after discovery had closed and after motions for summary judgment and an evidentiary challenge to the experts had been filed.

WorthPoint’s Motion and the Court’s Analysis

WorthPoint moved under Rule 37(c)(1), which generally prevents a party from using information or a witness that was not properly disclosed unless the failure was substantially justified or harmless. The court considered four factors: Trombetta’s explanation for the delay, the importance of the proposed testimony, prejudice to WorthPoint, and whether a continuance could address the problem.

The court found that Trombetta had not substantially justified the delay. It accepted that several disputes had made it difficult for her to focus on expert discovery between February and September 2022, but found that she did not explain why the reports were not completed during the remaining period before the December 19 deadline. The court also emphasized that Trombetta had been informed of the Rule 26 requirements by WorthPoint and the court, and that she understood that forwarding resumes was not enough.

The court found that the expert testimony could be relevant to damages, but that such testimony was not necessarily required to prove the emotional-distress and identity-theft claims if Trombetta first established liability. This factor therefore weighed only slightly in Trombetta’s favor. The court found the remaining factors favored exclusion because the late reports were served after WorthPoint filed its summary-judgment motion, reopening discovery would cause additional costs and delay, and the discovery deadlines had already been extended several times.

The court did not decide whether the reports satisfied every Rule 26 requirement or whether either proposed expert was qualified under the evidence rules. Those issues were part of a separate motion pending before Chief Judge Laura Taylor Swain.

Ruling

Judge Sarah L. Cave granted WorthPoint’s motion. Under Rule 37(c)(1), the court precluded Trombetta from relying on Dr. Scelsa’s and Ms. Skluzacek’s reports and testimony, and declined to reopen discovery. The order did not state that the entire case was dismissed or decide the parties’ underlying copyright, painting-attribution, or damages claims.