Fed. Circuit Reverses Exclusion of Expert Who Failed to Supplement His Report

Failure to supplement an expert witness report after depositions in which experts unveil new opinions or substantially expand on the opinions in their reports can result in substantial sanctions, including exclusion of the expert and case dismissal. In this case, a U.S. Court of Appeals for the First Circuit found exclusion just one step to far.

In Lawes v. CSA Architects & Engineers LLP, No. 16-2275 (1st Cir. 2020), the U.S. district court for Puerto Rico had excluded the plaintiff's only expert witness for failure to follow the federal Rules of Evidence and supplement his original report. With no expert witness to support the plaintiff, the district court dismissed the case.

In 2011, the plantiff and appellant, Grandvill D. Lawes, was struck by an SUV while trying to cross Fernández Juncos Avenue, an undivided four-lane highway bordered by a parallel street, in an area that was under construction, in Old San Juan, Puerto Rico. When Lawes and another merchant marine, Carlos Gordon, left their ship for dinner in the town, they walked along the highway until they encountered a midblock barrier. Rather than return a half block, the pair jaywalked across the highway and street to the other side to continue their walk to town. They tried returning the same way that night, but Lawes ended up caught in the center of the highway with traffic coming at him from both directions. Even though he was standing on highway's yellow divider, he was struck head on by a westbound SUV. Lawes survived as a quadriplegic with expenses at the time of trial having reached a reported $10 million.

Lawes filed a negligence lawsuit against the city, the construction contractor, their insurance companies and others involved, although by the time of appeal,the only remaining defendant was CSA Architects and Engineers, LLP (CSA) who had been hired to draw the plans for the construction project and was responsible for designing a Management of Traffic (MOT) plan to “safely control vehicular and pedestrian traffic” in the construction zone. Following CSA's MOT plan, one of the contractors installed a temporary concrete barrier along the southern sidewalk near the middle of the block. This midblock barrier partially closed the southern sidewalk from pedestrian use and jutted into the street parallel to the highway, reducing the width of one of its lanes.

CSA had placed Spanish-language signs at a crosswalk stating that the sidewalk was partially closed and indicating that pedestrians should cross over to the unobstructed northern sidewalk. If pedestrians missed the signs, they would walk about 300 feet to find the sidewalk closed, and then decide whether to walk back to the crosswalk or risk jaywalking.

Lawes' traffic engineering expert witness, Ralph Aronberg, who filed a “preliminary report” (his words) which was three pages long, to which he attached a copy of his CV, a list of recent trials and depositions and excerpts from the Manual on Uniform Traffic Control Devices (MUTCD), a set of guidelines published by the U.S. Department of Transportation.

Based on the MUTCD, Aronberg opined in his report that “by not providing a safe sidewalk and/or positive guidance in the use of sidewalks” the contractor Q.B. Construction created a “dangerous condition” that contributed to Lawes' accident. The contractor, in Aronberg's opinion, failed to provide positive guidance (such as a sign attached to the barrier such as “Sidewalk Closed Cross Here”), failed to ensure that the area streetlights were functioning that night and should have closed the southern sidewalk completely, instead repurposing the street lane that was too narrow for cars because of the mid-block barrier that jutted into the street.

After submitting his report, Aronberg was deposed twice, adding some new opinions, and elaborating on others. In his first deposition, Aronberg stated, for the first time, that there should have been "something" in place preventing Lawes from crossing at midblock from the northern sidewalk to the southern sidewalk, in particular, orange safety fences, which he pointed to being consistent with CSA's MOT. Aronberg also added the opinion that the contractor should have monitored the area for dangerous conditions as it would have detected unsafe pedestrian conduct.

Based on new data Aronberg had received since submitting his report, Aronberg expanded on his opinions that the southern sidewalk should have been completely closed as he only had access to “some pages” of the construction plans when drafting his preliminary report.

At his second deposition, Aronberg expanded further on his opinion based on, once again, having received new data, openly acknowledging that he had developed some new opinions, modified some earlier opinions, and more detail on other previously expressed opinions.

Asked during that deposition if he intended to provide a supplemental written report, Aronberg replied: “I would only amend it if I'm asked to amend it. To me, I've given a report and I've supplemented the report in depositions, which is sworn testimony for everybody to read. I don't know that I'm required to put it in any further written form beyond that.”

On the fifteenth day of the trial, the district court commenced on its own a Daubert hearing based on arguments Lawes had made. That hearing lasted 12 days, with the defendants complaining for the first time that Aronberg was not a reliable witness, that Lawes had insufficiently disclosed Aronberg's expert opinions before trial and that his opinions were unreasonably speculative. They moved to sanction Lawes for his violations, requesting that the court exclude Aronberg's testimony.

Lawes argued that the defendants “had not demonstrated surprise and prejudice,” that the defendants' experts had rebutted Aronberg's opinion in their reports and depositions and that the opinion was disclosed in the parties' jointly-filed pretrial order.

The district court issued an order explaining that to be admissible at trial the expert's opinions must be included in their preliminary expert report or in written supplemental reports. In the end, the district court granted motions to exclude Aronberg from the trial, and without Aronberg's testimony, granted the defendants' move for judgment as a matter of law. Lawes appealed.

The First Circuit Court of Appeals found that the district court had gone too far, noting that “there is no support in the rules or our case law for disregarding deposition testimony in considering whether (and to what extent) sanctions are appropriate given the discovery violations at issue.”

The Circuit Court found that the district court should have considered whether Aronberg's deposition testimony put the defendants on notice or whether they were actually surprised and unprepared for Aronberg's Daubert testimony. The pretrial record did not support any claim of surprise.

As well, the Circuit Court found that the district court's observation that the defendants' would be forced to “read hundreds of pages of [Aronberg's] depositions” in order to prepare for trial was not enough “to tip the scale” and totally exclude Aronberg's testimony. While the Circuit Court acknowledged the “countless hours” of extra work for the defendants' attorneys caused by Lawes' failure to supplement Aronberg's report, and inadequacies in Aronberg's opinion, the Circuit Court considered that they had a “compelling plaintiff who is left out in the cold, most probably by actions beyond his personal doing.”

In his concurring opinion, Circuit Judge Torruella noted that the unreliability of the Aronberg's evidence “flowed from the expert's failure to provide detailed conclusions in a final and complete expert report” and advise those wishing to avoid exclusion “to make a good faith effort to comply with disclosure requirements or risk facing serious repercussions.”

While the Circuit Court reversed the district court, it also noted that the lower court had a “broad universe of available sanctions in an effort to fit the punishment to the severity and circumstances of the violation.” One would expect the district court to consider what sanctions it may impose short of excluding Aronberg's expert testimony.

Supplementing expert reports is a standard requirement in federal courts, even if not asked to do so.