United States District Court, E.D. Pennsylvania
JOHN R. PADOVA, District Judge.
This is a breach of contract action arising from Defendant American Home Shield's ("AHS") alleged breach of its duty of good faith and fair dealing in connection with its performance of one of its duties under a Memorandum of Agreement ("MOA") entered into by the parties on January 27, 2010. Before the Court is AHS's Motion to Strike February 18, 2014 Declaration of David Thomas. For the following reasons, the Motion to Strike is granted.
This action was filed on November 19, 2010. (Docket No. 1.) The Complaint asserted four causes of action against AHS and Service Master Consumer Services Limited Partnership ("SVM"): (1) a claim for breach of contract against AHS (Count I); a claim for unjust enrichment and promissory estoppel against AHS (Count II), a claim for breach of contract against SVM (Count III); and a claim for tortious interference with contract against SVM (Count IV). Defendants moved for summary judgment as to all four claims asserted in the Complaint and we granted that motion in part and denied it in part on January 17, 2013. See myServiceForce, Inc. v. American Home Shield, Civ. A. No. 10-6793, 2013 WL 180287 (E.D. Pa. Jan. 17, 2013). We denied the Motion for Summary Judgment as to myServiceForce, Inc.'s ("mSF") claim, in Count I of the Complaint, that AHS breached its duty of good faith and fair dealing with respect to its obligations under the MOA to impose status reporting requirements on its contractors. Id. at *27. We granted the Motion for Summary Judgment as to mSF's remaining claims for breach of contract asserted in Count I of the Complaint. Id . We also granted the Motion for Summary Judgment as to Counts II-IV of the Complaint and dismissed SVM as a Defendant in this action. Id. at *27-*28.
After we resolved the Motion for Summary Judgment, we issued a new Scheduling Order, giving mSF the opportunity to produce revised expert reports with respect to the sole claim remaining in the case no later than February 20, 2013. (See 2/6/13 Order ¶ 2.) We also listed this case for trial on April 22, 2013. (Id. ¶10.) AHS subsequently filed two Motions to Strike Plaintiff's Experts, seeking to preclude the introduction of mSF's experts' reports and opinions at trial, and a Motion for Leave to File Motion for Summary Judgment, seeking to file a Motion for Summary Judgment on mSF's remaining claim, on the ground that mSF could not establish that it had been injured by AHS's alleged breach of its duty of good faith and fair dealing.
AHS's first Motion to Strike Plaintiff's Experts asked that we strike the opinions of Thomas Tinsley and Marc Reid and their joint expert report (the "Tinsley/Reid Report"), and the opinions and reports of David Chandler Thomas and Bruce Luehrs on the grounds that those opinions were unreliable and did not fit mSF's remaining claim in this case. Specifically, AHS asked us to strike Tinsley's opinion that the only way that AHS could comply with its obligation under the MOA to impose certain status reporting requirements on its Preferred and Network contractors was to require those contractors to purchase mSF's products. AHS also asked us to strike the Tinsely Reid Report and Reid's opinions, as well as the reports and opinions of David Chandler Thomas and Bruce Luehrs, because those experts' opinions and reports were based on Tinsley's opinion. We granted AHS's first Motion to Strike on April 25, 2013 and dismissed its second Motion to Strike as moot. See myServiceForce, Inc. v. American Home Shield, Civ. A. No. 10-6793, 2013 WL 1773799 (E.D. Pa. Apr. 25, 2013). We also granted AHS leave to file a Motion for Summary Judgment. See id. at *16-*17.
mSF did not seek leave to submit new expert reports after we granted AHS's first Motion to Strike Plaintiff's Experts. Nonetheless, mSF responded to AHS's second Motion for Summary Judgment by filing new expert reports prepared by David Chandler Thomas and Bruce Luehrs dated May 16, 2013. AHS filed a Motion to Strike those expert reports on the grounds that they were filed after the February 20, 2013 deadline for Plaintiff to provide amended expert reports in support of their remaining claim in this case. We denied that Motion to Strike, but granted AHS leave to depose Mr. Thomas and Mr. Luehrs and to submit its own expert reports responsive to the opinions of Mr. Thomas and Mr. Luehrs. (8/15/13 Order ¶¶ 4-5.) We also dismissed AHS's second Motion for Summary Judgment as moot and granted AHS leave to file a new Motion for Summary Judgment no later than October 29, 2013. (Id. ¶ 6.)
Mr. Thomas prepared a revised version of his May 16, 2013 Report on October 10, 2013 and AHS took his deposition on October 31, 2013. On December 20, 2013, AHS filed its third Motion to Strike Plaintiff's Experts, seeking to strike the new opinions and reports of Mr. Thomas and Mr. Luehrs. AHS also filed its third Motion for Summary Judgment on December 20, 2013. Both Motions have been extensively briefed. On February 18, 2014, mSF filed a "Motion for Leave to File Sur-Reply in Further Opposition to Defendant's Motion to Strike Plaintiff's Expert Witnesses." (Docket No. 184.) We granted that Motion on February 25, 2014. One of the exhibits to mSF's Sur-Reply is the Declaration of David Chandler Thomas dated February 18, 2014. AHS has moved to strike that Declaration, on the grounds that it was filed both after the extended period for expert disclosures in this case had concluded and nearly four months after Mr. Thomas's deposition, and that its filing was thus prejudicial to AHS.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(2) provides that "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26(a)(2)(A). If an expert witness has been retained to provide expert testimony, that disclosure "must be accompanied by a written report - prepared and signed by the witness, " Fed.R.Civ.P. 26(a)(2)(B), that contains the following:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications...;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert...;
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Id. The parties in a civil action have a duty to timely supplement their discovery responses if they learn "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...." Fed.R.Civ.P. 26(e)(1). The duty to supplement discovery responses extends to information provided in expert reports "and to information given during the expert's deposition." Fed.R.Civ.P. 26(e)(2). "Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due." Id . When we consider whether to allow a party to supplement its expert's report after the time provided for doing so by our Scheduling Orders has expired, we consider the following five factors:
(1) "the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified" or the excluded evidence would have been offered; (2) "the ability of that party to cure the prejudice"; (3) the extent to which allowing such witnesses or evidence would "disrupt the orderly and efficient trial of the case or of other cases in the court"; (4) any "bad faith or willfulness in failing to comply with the court's order"; and (5) the importance of the excluded evidence.
ZF Meritor, LLC v. Eaton Corp. , 696 F.3d 254, 298 (3d Cir. 2012). (quoting Meyers v. Pennypack Woods Home Ownership Ass'n , 559 ...