Carroll v. Trump

Background

E. Jean Carroll’s case is a defamation action based on statements Donald Trump made in June 2019 after Carroll publicly accused him of sexual assault. The court had already granted Carroll summary judgment on the liability elements connected to Trump’s June 21 and June 22 statements, leaving damages for trial. Carroll had also stated that she would not pursue defamation liability based on Trump’s June 24 statement.

Trump’s damages expert, Robert J. Fisher, had been excluded from testifying. Carroll’s damages expert, Professor Ashlee Humphreys, agreed to provide a supplemental report recalculating damages after Carroll withdrew the June 24 statement. Trump then asked to submit a new rebuttal expert report.

Legal standard

The court treated Trump’s request as one to modify the pretrial schedule under Federal Rule of Civil Procedure 16(b)(4), rather than simply as a request under Rule 26 governing expert disclosures. Rule 16(b)(4) permits a scheduling change only for good cause and with the judge’s consent. Courts consider factors including how close trial is, whether the request is opposed, prejudice to the other side, the moving party’s diligence, whether the need for additional discovery was foreseeable, and whether the proposed discovery is likely to produce relevant evidence.

Court’s analysis

The court concluded that Trump had not acted diligently. It found that he had been on notice since at least March 2023 that Fisher’s proposed testimony was likely to be excluded because the court had excluded substantially similar testimony in the earlier related proceeding. Trump nevertheless waited until after the court excluded Fisher’s testimony in this case before seeking a replacement.

The court also found that allowing a new expert so close to trial would unfairly burden Carroll. Trump had not identified the proposed expert, provided the person’s qualifications, submitted a report, or made the person available for deposition. A new expert might also prompt another challenge to the testimony, requiring additional briefing and court review. The court rejected Trump’s claim that he would be unfairly disadvantaged because Carroll was allowed to submit a supplemental report. It reasoned that the supplemental report was prompted by Trump’s own request, was intended to account for Carroll’s decision not to pursue the June 24 statement, and was expected to reduce the damages calculation rather than change Humphreys’ methodology.

Disposition

The court denied Trump’s application to submit a new rebuttal expert. The denial was subject to a limited caveat: if Humphreys’ supplemental report used a different methodology or analysis from her original report, Trump could renew his request for a rebuttal report limited to that new material. Any renewed request would have to show precisely how the supplemental report differed from the original.