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Paper Mill Holding Company, Ltd. v. D.R. Horton

January 26, 2009


The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge


In this case, plaintiff Paper Mill Holding Company, Ltd. ("Paper Mill") alleges that Defendant D.R. Horton, Inc. -- New Jersey ("Horton") breached a performance agreement between the parties for the purchase by Horton of some land. Horton has now filed a motion in limine asking this Court to preclude the expert testimony of rebuttal witnesses identified by plaintiff, Paper Mill Holding Company, Ltd. ("Paper Mill"), or, in the alternative, to compel the filing of reports under Fed. R. Civ. Pr. 26(a)(2)(B), and to extend the schedule in this case to permit the deposition of these witnesses. For the reasons set forth below, Horton's motion will be granted, except that expert reports will not be required.

I. Factual and Procedural Background

The scheduling order entered by the undersigned on July 24, 2008, provided that factual discovery was to be completed by October 31, 2008. Expert reports were to be exchanged no later than November 14, 2008, and rebuttal reports were to be exchanged on or before December 15, 2008. Expert discovery, i.e., the period of time during which an expert could be deposed, closed on December 31, 2008. Trial is scheduled for March 2, 2009.

According to Horton, Paper Mill provided one expert report on November 14, 2008. The court is not aware of this witness's identity, and there appears to be no issue as to him or her. On December 15, 2008, counsel for Paper Mill sent this letter to Horton's counsel:

Please be advised that Paper Mill may rebut Horton -- NJ's proposed expert testimony through the fact and opinion testimony of those witnesses previously identified in Paper Mill's Rule 26(a)(1) Disclosures, as amended on October 31, 2008, as well [as] the below list of individuals, all of whom were previously identified in Paper Mill's Response to Horton -- NJ's Interrogatory No. 1: Gregg

I. Adelman, Esquire; David Della Porta; Michael Dirks, P.E.; David L. Fehr, P.E.; Robert H. Plucienik, P.E., P.L.S.; and Bruce A. Irvine, Esquire.

Letter of December 15, 2008, attached to Horton's Motion as Exhibit A. Horton now maintains that since none of the individuals included in Paper Mill's December 15, 2008, letter submitted an expert report, none should be permitted to rebut the testimony of the defense experts. As noted above, Horton alternatively requests that Paper Mill be compelled to submit expert reports, and that an extension of time be permitted within which to depose the newly identified experts.

In its response, Paper Mill maintains that, despite the allusion in its December 15, 2008, letter to "opinion testimony", it has not yet indicated that any of these rebuttal witnesses will testify as experts. Instead, they may offer fact testimony. Paper Mill gives as an example the possibility that Horton's expert may testify that the conditions of the Purchase Agreement were not fulfilled because Paper Mill failed to obtained a required re-approval of its plans by Newtown Township. According to Paper Mill, it might rebut this testimony with factual testimony from Bruce A. Irvine, Esq., the Newtown Township solicitor, who might explain that the Township decided re-approval was unnecessary.

Paper Mill also maintains that, even if some of the rebuttal witnesses testimony will be expert opinion, no expert report would be required because none of the individuals identified were specifically employed to give expert testimony, nor do their job duties regularly involve giving expert testimony. According to Paper Mill, it was up to Horton to depose, or re-depose, these witnesses after receiving the December 15, 2008, letter identifying them.

II. Legal Standards

The provisions in my scheduling order for the disclosure and discovery of witnesses are st forth above. There are also, however, relevant federal rules. Under Federal Rule of Civil Procedure 26, a party must disclose to the other party the identity of his possible fact witnesses within fourteen days of the initial conference in the case. A party must also disclose to the other party the identities of its expert witnesses in accordance with the schedule set by the court, or -- in the absence of such -- within ninety days of trial. Fed. R. Civ. Pr. 26(a)(2)(A) and (C)(I). However, rebuttal testimony need only be disclosed thirty days after the other party's disclosure. Fed. R. Civ. Pr. 26(a)(2)(C)(ii).

The disclosure of an expert witness must be accompanied by a written report prepared and signed by the expert, but only "if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Fed. R. Civ. Pr. 26(a)(2)(B).

Only an expert may offer a technical or specialized opinion. A lay witness may offer only those opinions which are (a) rationally based on his or her own perception, (b) helpful to a clear understanding of her testimony or of a fact at issue; and (c) not ...

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