Simchat Torah Beit Midrash v. Philadelphia Indemnity Insurance Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-00594-SKC-TPO
SIMCHAT TORAH BEIT MIDRASH, a nonprofit corporation,
Plaintiff,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S
FIRST SUPPLEMENTAL EXPERT DISCLOSURES (DKT. 57)
The 	above-referenced 	Motion 	is 	now 	before 	the 	Court. 	The 	Court 	has
considered the Motion, Defendant’s Response (Dkt. 63), and Plaintiff’s Reply (Dkt.
70). No hearing is necessary to aid the Court’s ruling. This is an insurance bad faith
case arising from a windstorm which Plaintiff claims damaged the custom slate roof
tiles of Plaintiff’s synagogue and broadcasting station. As a result of the damage,
Plaintiff made a claim with its insurance carrier, Defendant Philadelphia Indemnity
Insurance Company, under a property insurance policy.
With its Motion, Plaintiff seeks an order striking Defendant’s supplemental
report of its retained costing expert, Gary Stevens (“Stevens Supplement”). Plaintiff
raises varied reasons to strike the Stevens Supplement, some of which are difficult to
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follow. But the core legal reasons appear to be that it was disclosed late; it relies on
the opinions of another expert that was not previously disclosed; it cannot pass the
Daubert standard; and it includes sur-rebuttal opinions.1 Defendant argues the
Stevens Supplement does not constitute a Rule 26(a)(2) violation, and even if it does,
the alleged late disclosure was justified and harmless. It further contends the Stevens
Supplement complies with Fed. R. Evid. 702 and 703.
Because the Court finds the Stevens Supplement violates Rule 26(e) and the
violation was neither justified nor harmless, the Motion is GRANTED.2
PERTINENT FACTS
The Court issued a Scheduling Order in this case which included applicable
deadlines concerning expert disclosures. Dkt. 17. After the dust settled on various
extensions of those deadlines, the operative deadlines were as follows:
01/19/2024: deadline for disclosure of affirmative experts
03/15/2024: deadline for disclosure of rebuttal experts
08/16/2024: discovery cut-off
1 While Rule 26 permits affirmative and rebuttal expert disclosures, it does not
contemplate sur-rebuttal expert disclosures. Rothenberg v. Standard Ins. Co., No. 11-
cv-01906-WYD-KMT, 2012 WL 2126846, at *2 (D. Colo. June 12, 2012) (citing Fed. R.
Civ. P. 26(a)(2)(A)). Accordingly, whether to allow sur-rebuttal evidence is within the
district court’s sound discretion. United States v. Sorensen, 801 F.3d 1217, 1239 (10th
Cir. 2015) (citing United States v. Herring, 582 F.2d 535, 543 (10th Cir.1978).
2 Since the Court’s ruling is based on Defendant’s discovery or disclosure violation,
the Court does not reach Plaintiff’s additional arguments for striking the Stevens
Supplement.
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On January 19, 2024, Defendant timely disclosed Gary Stevens as a specially
retained expert witness. In his expert report, at various points Stevens indicated his
need to inspect the property relevant to certain of his opinions. Dkt. 57-1, p.2 (“I would
request an opportunity to inspect the subject property in order to verify and or
confirm certain items being claimed.”), p.6 (“[T]here are some slate roof line items
within CPPA’s estimate I will not opine on until I have had an opportunity to inspect
the property.”); see also id. at pp.9, 10, 11, 12-13 (referring to the need to inspect the
property regarding his opinions on line item nos. 6, 7, 9, 22, 24-26, respectively).
On March 14, 2024, one day before the deadline for disclosure of rebuttal
experts, defense counsel initiated conferral with Plaintiff’s counsel over a site
inspection for Stevens. Dkt. 57-6, p.3. The next day, on March 15, 2024, Plaintiff
timely disclosed David Phalen as an expert witness to rebut Stevens’ opinions
disclosed in January.
The parties were unable to schedule the site inspection for any earlier than
May 10, 2024. Stevens inspected the property that day. He brought with him John
Fleming of Weathercraft Company of Colorado Springs, Inc. (collectively, “Fleming”),
and Fleming took a core sample of roof material during the inspection over Plaintiff’s
apparent objection. On July 3, 2024, Defendant disclosed the Stevens Supplement.
Among other topics, the Stevens Supplement specifies that it “will be discussing the
following topics that were observed during my inspection: . . . Estimates submitted
by [Fleming] [and] David Phalen’s [] report dated February 28, 2024.” Dkt. 63-1, p.8.
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LEGAL PRINCIPLES
Federal 	Rule 	of 	Civil 	Procedure 	26(a)(2)(E) 	states 	“the 	parties 	must
supplement 	[their 	expert] 	disclosures 	when 	required 	under 	Rule 	26(e).” 	Rule
26(e)(1)(A) provides that a party must supplement “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.” Although Rule
26(e) imposes a duty to supplement on the parties, it cannot be used to circumvent
deadlines 	in 	the 	Scheduling 	Order. 	Rather, 	supplementation 	is 	a 	means 	for
“correcting inaccuracies, or filling the interstices of an incomplete report based on
information that was not available at the time of the disclosure.” Mullin v. Hyatt
Residential Grp., Inc., No. 13-cv-2348-WJM-NYW, 2015 WL 1502379, at *3 (D. Colo.
Mar. 27, 2015) (quoting Aid for Women v. Foulston, 2005 WL 6964192, *3 (D. Kan.
July 14, 2005)).
When “a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The determination of whether a Rule
26(e) violation is justified or harmless is entrusted to the broad discretion of the
district court. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985,
993 (10th Cir. 1999). “A district court need not make explicit findings concerning the
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existence of a substantial justification or the harmlessness of a failure to disclose.”
Id. “Nevertheless, the following factors should guide its discretion: (1) the prejudice
or surprise to the party against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which introducing such testimony would
disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Id.
ANALYSIS AND FINDINGS
Rule 26(e) requires timely supplementation of disclosures. Fed. R. Civ. P.
26(e)(1)(A). The Court finds the Stevens Supplement was untimely considering
Defendant’s knowledge that Stevens required a site inspection as early as January
19, 2024.
In his initial report disclosed January 19, 2024, Stevens made clear that a site
inspection was necessary to certain of his opinions. And yet, Defendant waited nearly
two months to initiate conferral with Plaintiff over a site inspection. When it finally
raised the issue, it did so the day before Plaintiff’s rebuttal expert disclosures were
due. Then the site inspection did not occur until May 10, 2024, nearly five months
after Stevens indicated he needed a site inspection.3 Henderson v. Nat’l R.R.
Passenger Corp., 412 F. App’x 74, 81 (10th Cir. 2011) (referring to the trial court’s
observation that “Plaintiffs evidently made very little effort to obtain the necessary
3 The Court understands that scheduling the site inspection took some time based on
the number of individual schedules involved, but that was even more reason for
Defendant to have acted promptly after January 19, 2024, to schedule and complete
the site inspection.
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information[.]”). It then took Defendant nearly two months from the site inspection
to disclose the Stevens Supplement on July 3, 2024. Discovery closed soon after on
August 16, 2024.
A review of the Stevens Supplement demonstrates he took liberties that
exceeded merely supplementing his opinions, as primarily observed with his opinions
which rebut or address Plaintiff’s rebuttal expert’s opinions. To be sure, even Stevens
concedes the liberties he took with his supplement as explained by him in his
Declaration attached as an exhibit to Defendant’s Response (Dkt. 63):
My supplemental report dated July 3, 2024, was based on my inspection
of the Property. The inspection of the Property was necessary to further
support the opinions offered in my initial report and confirm the
unsubstantiated, excessive, and unnecessary costs contained in Plaintiff’s
expert costing report issued by David Phalen and the public adjuster’s
estimate in which Phalen relies upon. That analysis is provided within
my supplemental report and is an extension of my opinions identified in
my initial report.
Dkt. 63-1, ¶5 (emphasis added). See Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d
1071, 1169 (D. Colo. 2006) (“A supplemental expert report that states additional
opinions or rationales or seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the
original expert report exceeds the bounds of permissible supplementation and is
subject to exclusion under Rule 37(c).”). For these reasons, the Court finds the
Stevens Supplement violates Rule 26(e).
If a party fails to timely supplemental an expert report, it is prohibited from
using that information at trial unless “the failure was substantially justified or is
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harmless.” Fed. R. Civ. P. 37(c)(1). The question, thus, is whether Defendant’s
violation is substantially justified or harmless. The Court finds it is neither.
First, Defendant offers no explanation at all for the various delays (noted
above) leading to its disclosure of the Stevens Supplement on July 3. Second, its
suggestion that Plaintiff could have conducted discovery over the supplement is
unavailing. The failure to comply with discovery and disclosure rules is not excused
in every instance simply because time remains on the schedule to conduct additional
discovery. See, e.g., Beller ex rel. Beller v. United States, 221 F.R.D. 689, 694 (D.N.M.
2003). And the suggestion, under the circumstances presented here, would render the
finality of expert and supplemental reports a moving target. See id.at 695 (“To rule
otherwise would create a system where preliminary reports could be followed by
supplementary reports and there would be no finality to expert reports, as each side,
in order to buttress its case or position, could ‘supplement’ existing reports and modify
opinions previously given.”).
For the reasons shared above, and considering the four Woodworker’s Supply
factors, the Court finds the Stevens Supplement should be stricken to prevent
prejudice to Plaintiff. It’s too late to cure this prejudice because trial is set to
commence in a matter of days, on March 10, 2025.
Subject to any objections at trial, Stevens may testify to his opinions disclosed
in his initial report, but he is precluded from offering any opinions contained in the
supplemental report. The Quapaw Tribe of Oklahoma v. Blue Tee Corp., No. 03-CV-
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0846-CVE-PJC, 2010 WL 3909204, at *6 (N.D. Okla. Sept. 29, 2010) (The Tribe also
overstates the harm to its case from exclusion of Brown’s and Whitelaw’s new reports,
because the Tribe may still rely on the expert opinions stated in [their] initial
reports[.]”). The Motion is GRANTED.
DATED: March 1, 2025
BY THE COURT:
____________________________
S. Kato Crews
United States District Judge
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