DONALD DALTON, et al.
McCOURT ELECTRIC, LLC, et al.
MEMORANDUM OF DECISION
THOMAS J. RUETER, Magistrate Judge.
Presently before the court is a Motion to Preclude the Testimony and Report of Michael Wald, E.E.C., of Investigating Engineering, Inc., or Any Other Expert Proffered on Behalf of Plaintiffs (the "Motion") (Doc. No. 47), plaintiffs' opposition thereto (Doc. No. 48), Intermatic's reply brief (Doc. No. 49), and plaintiffs' supplemental response (Doc. Nos. 51, 53). The court heard oral argument on December 9, 2013. For the reasons that follow, the court recommends that the Motion be DENIED IN PART and GRANTED IN PART. The court denies the request to preclude the expert report, but grants the request for sanctions because plaintiffs willfully disregarded the court's scheduling order.
Plaintiffs, Donald Dalton and Loris Dalton, filed a Complaint on June 25, 2012 against two defendants: McCourt Electric, LLC ("McCourt") of Newark, Delaware and Intermatic, Inc. ("Intermatic"), an Illinois company. Plaintiffs' claim stems from a fire that occurred at their home located in Landenberg, Pennsylvania. As a result of the fire, plaintiffs sustained substantial loss to their real and personal property. In the Complaint, plaintiffs alleged that defendant, McCourt, installed electrical components manufactured by defendant Intermatic and that the fire was a direct and proximate result "of the failure of the aforementioned electrical components as manufactured, distributed, and installed by the Defendants." (Complaint ¶ 10.) In Counts One, Three and Four of the Complaint, plaintiffs alleged that "electric components" manufactured by defendant, Intermatic Inc., were defective. Plaintiffs' Complaint did not describe what particular electrical part was defective. In Count Two of the Complaint, plaintiffs alleged that defendant McCourt improperly installed the "electrical component" manufactured by Intermatic. Again, plaintiffs provided no description of the electrical part at issue.
On October 31, 2012, the Honorable Eduardo C. Robreno referred the above matter to the undersigned for all pretrial purposes. On November 26, 2012, the undersigned entered a Scheduling Order requiring plaintiffs' expert report to be filed on February 22, 2013, and the trial pool date was set for July 22, 2013. (Doc. No. 26.) At the request of the parties, Judge Robreno and the undersigned extended the pretrial deadlines on four occasions. (Doc. Nos. 32, 42, 44.) On the fourth time, October 9, 2013, the court entered a new scheduling order. (Doc. No. 46.) Plaintiffs' expert report was due on November 1, 2013, and the trial pool date was extended to January 27, 2014. Id.
In October 2013, as the deadline for plaintiffs' expert report approached, plaintiffs' attorney, Kenneth T. Levine, Esquire, wrote a series of e-mails to Intermatic's counsel, and told them that if "compelled" to provide his expert reports, that his expert, Michael Wald, would opine that the "fire was caused by an internal malfunction of the Intermatic timer in a location that would not have been affected by the installation, maintenance or wear and tear." (Motion Ex. D (e-mail dated 10/2/2013).) Mr. Levine stated that unless counsel for Intermatic provided contrary evidence, or immediately engaged in settlement discussions with his client, he would issue Mr. Wald's report and the expert would place all liability on Intermatic, and not on the installer, defendant McCourt.
Mr. Levine explained to Intermatic's counsel that he was engaged in settlement negotiations with defendant McCourt and would be able to persuade McCourt to make a significant settlement offer:
McCourt Electric is under pressure (due to a limits issue) to try and resolve this matter under its policy limits. I have positioned this matter in such a way as to apply such pressure and frame this case in their eyes as a negligent installation (overtightening of the terminal screws) case. With such pressure on, they will be rather amenable to contributing significantly to any resolution.
(Motion Ex. E (e-mail dated 10/2/2013).) At that time, Mr. Levine was reluctant to release the expert report of Mr. Wald to counsel, because once he did so "all of the pressure on McCourt will dissipate... McCourt's counsel will now have a road map how to shirk all responsibility... [and] McCourt's carrier will contribute a fraction of what it is probably prepared to supply right now." Id. In response, counsel for Intermatic refused to mediate or disclose the results of its own expert's investigation of the fire until after it received plaintiffs' expert report. Intermatic's expert report was not due until December 2, 2013, thirty days after plaintiffs were required to serve their expert report.
On October 31, 2013, the day before plaintiffs' expert report was due, Mr. Levine sent an e-mail to counsel for Intermatic asking them to reconsider their position and imploring them to settle the case before "the expert report comes out only against Intermatic." (Motion Ex. G (e-mail dated 10/31/13).) Mr. Levine predicted that once it was filed, counsel for McCourt "will undoubtedly take his money and go away." Id. Mr. Levine ended his message by saying: "I can at least go to sleep tonight knowing that I gave you guys an out' before you hung yourselves." Id.
On Friday, November 1, 2013 at 8:43 p.m., Mr. Levine e-mailed counsel for Intermatic and said he was unable to submit Mike Wald's expert report because his expert "was out of the country." (Motion Ex. H (e-mail dated 11/1/13).) He stated that he could distribute the report on Monday, November 4, 2013. Id. Mr. Levine concluded by stating that he appreciated "your professional courtesies here and will extend your responsive deadlines by 2-3 days as you wish." Id. By e-mail dated November 4, 2013, counsel for Intermatic agreed to allow plaintiff "to finalize and forward your expert report to us no later than the close of business, 5:00 p.m., on Friday, November 8, 2013." (Motion Ex. I (e-mail dated 11/4/13).) Counsel warned, however, that it would file a motion to preclude the expert, if the report was not filed by the extended deadline. Id. Counsel for Intermatic did not hear back from Mr. Levine. Thus, on November 11, 2013, Intermatic filed the motion to preclude Michael Wald as an expert. A week later, on November 18, 2013, plaintiffs submitted the expert report of Michael Wald, dated November 15, 2013, to defendant Intermatic, seventeen days after the court imposed deadline of November 1, 2013.
Intermatic requests the court to preclude the testimony of Michael Wald as a sanction for plaintiffs' counsel's willful and blatant disregard of the court's order imposing a deadline of November 1, 2013 for the submission of plaintiffs' expert report. Intermatic notes that plaintiffs intentionally withheld the report to gain an advantage in the litigation, particularly by delaying submission of the report until they completed a settlement agreement with defendant McCourt. Moreover, defendant Intermatic notes that the report of Mr. Wald does not fully comply with Rule 26(a)(2) of the Federal Rules of Civil Procedure because neither his curriculum vitae nor his prior testimony was provided with the report.
The Third Circuit Court of Appeals has set forth the standards this court must apply in ...