BDG Gotham Residential, LLC v. Western Waterproofing Company, Inc.

Background

BDG Gotham Residential, LLC (BDG) and ZDG, LLC were required to disclose their affirmative expert evidence—including the experts’ identities and written reports—by June 30, 2023. Plaintiffs had served one expert report, prepared by Joseph W. Wallwork, on May 12. The parties later agreed to extend the defendants’ expert-report deadline to August 11 and the plaintiffs’ rebuttal-report deadline to September 15.

On August 4, plaintiffs asked the court to retroactively extend their own affirmative expert-report deadline to September 8. They said they were considering two additional reports: an accounting audit of the materials supporting BDG’s damages calculations and a report from a crane expert concerning the permit requirements and use of the mini-crane involved in the accident. Plaintiffs attributed the need for these reports to ongoing fact discovery and testimony in a related criminal trial.

The Parties’ Arguments

Defendants Western Waterproofing Company, Inc. and Western Surety Company opposed the request. They argued that plaintiffs’ request was untimely, that plaintiffs had previously represented that the Wallwork report was their final report, and that defendants had already spent substantial time and money preparing expert reports responding to it. Defendants also argued that plaintiffs were improperly trying to improve or reinforce their existing damages report with a second expert report on the same subject.

Plaintiffs did not submit a reply letter.

Court’s Analysis

The court applied Federal Rule of Civil Procedure 16(b)(4), which requires a party seeking to change a court-ordered schedule to show “good cause.” In this context, good cause requires showing that the deadline could not reasonably have been met despite diligence.

The court concluded that plaintiffs had not shown the required diligence. It stated that plaintiffs knew before the June 30 deadline that the mini-crane’s permitting and use could be important issues. Plaintiffs also knew that two relevant witnesses had not yet testified in depositions and that one witness’s criminal-trial testimony was ongoing. Nevertheless, plaintiffs waited until August 4—about a week before defendants’ expert reports were due—to seek the extension. The court found that this delay prejudiced defendants, who had prepared their reports believing that the Wallwork report was plaintiffs’ only expert evidence.

The court separately held that plaintiffs had not shown good cause to supplement the damages report with an audit of the supporting materials. It explained that experts generally may not use a second report to continually bolster, strengthen, or improve an initial report on issues they have already addressed. The court cited decisions limiting overlapping reports from multiple experts on the same subject.

Disposition

The court denied plaintiffs’ application for the requested extension. It noted that plaintiffs still had until September 15, 2023, to serve rebuttal reports addressing expert evidence disclosed by defendants, provided the reports were otherwise admissible. The court declined to adjust the pretrial schedule to allow additional affirmative reports out of time because doing so could restart the expert-disclosure process, prolong expert discovery, and require defendants’ experts to revise their reports. The clerk was directed to close the motion at Dkt. 171.