United States District Court, D. South Carolina, Columbia Division
WPS Inc. d/b/a Honda of Columbia, Plaintiff,
American Honda Motor Co. Inc., and PMJ Automotive of South Carolina, LLC, Defendants.
OPINION AND ORDER GRANTING IN PART MOTION TO STRIKE
REBUTTAL REPORTS (ECF NO. 74)
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
this action, Plaintiff WPS, Inc., d/b/a Honda of Columbia
(“Plaintiff”) brings state claims against
American Honda Motor Co., Inc., (“AHM”) and PMJ
Automotive of South Carolina (“PMJ”), requesting
declaratory and injunctive relief and asking the court to
“prohibit the establishment of a new dealership . .
.within ten miles of an existing dealership, like Honda of
Columbia.” ECF No. 1-1, Compl. at ¶ 40.
matter is before the court on AHM's motion to strike
Plaintiff's Rebuttal Expert Reports. ECF No. 74. For
the reasons set forth below, the motion is granted in part.
scheduling order in this case, agreed to by the parties,
Defendant AHM's initial expert reports were due December
13, 2016, and were timely submitted. ECF No. 43.
Plaintiff's deadline for initial expert reports was
February 10, 2017, and two reports were submitted. ECF No.
50. Rebuttal expert reports were due June 29, 2017. ECF No.
59. Plaintiff submitted two “Rebuttal/Supplemental
Reports” on that date.
26, 2017, AHM filed a motion to strike the
rebuttal/supplemental expert reports of Plaintiff's
experts, Joseph F. Roesner and Kenneth Rosenfield. ECF No.
74. AHM argues Plaintiff is “attempt[ing] to bolster
the analyses contained in its initial reports under the guise
of rebuttal . . . and the two reports filed as
rebuttal/supplemental expert reports should be
stricken.” ECF No. 74-1. Specifically, AHM argues the
June reports are untimely “affirmative expert reports,
” and should be stricken because they do not contain
rebuttal evidence, are not proper supplementation under Rule
26(e), and the failure to properly disclose the information
is neither harmless nor substantially justified. Id.
filed a response, noting its “rebuttal reports were
timely, were served almost eight months prior to the trial
date, and directly rebut AHM's experts' opinions that
the proposed dealership will not negatively impact Honda of
Columbia.” ECF No. 75. Plaintiff argues AHM's
motion is procedurally improper, as a motion to strike is not
the appropriate mechanism to challenge an expert report.
Plaintiff also contends the reports are “classic
rebuttals . . .as to the impact of the proposed new
dealership.” In the alternative, if the court finds the
reports are not proper rebuttal, Plaintiff argues the reports
are permitted supplements under Rule 26. Finally, Plaintiff
argues the reports are “still permissible” if not
allowed under Rule 26 because they are substantially
justified and/or harmless, because they were served within
the discovery period, before expert depositions, and almost
eight months before trial.
reply, AHM argues Plaintiff's new reports were not
submitted in response to new information provided by
AHM's experts, and were for the purpose of recreating
proximity analysis to allege more damage to Plaintiff. ECF
No. 76. AHM argues the initial reports submitted by Plaintiff
were not inaccurate and the June reports do not include new
information unavailable prior to the initial reports.
Finally, it argues the “last minute submission”
is neither justified nor harmless and should be stricken.
to Fed. R. Civ. P 26(a)(2)(B), expert witness disclosures
“must be accompanied by a written report, ” which
contains, in relevant part, “a complete statement of
all opinions the witness will express and the basis and
reasons for them.” The parties must disclose expert
testimony “at the times and in the sequence that the
court orders.” Fed. R. Civ. P 26(a)(2)(D).
reports are “intended solely to contradict or rebut
evidence on the same subject matter identified by another
party ...” Fed.R.Civ.P. 26(a)(2)(D)(ii).
“Rebuttal evidence is defined as evidence given to
explain, repel, counteract, or disprove facts given in
evidence by the opposing party.” United States v.
Stitt, 250 F.3d 878, 897 (4th Cir. 2001). “A party
may not offer testimony under the guise of
‘rebuttal' only to provide additional support for
his case in chief.” Wise v. C. R. Bard, Inc.,
No. 2:12-CV-01378, 2015 WL 461484, at *2 (S.D.W.Va. Feb. 3,
2015). Thus, “[r]ebuttal experts cannot put forth their
own theories; they must restrict their testimony to attacking
the theories offered by the adversary's experts.”
Boles v. United States, No. 1:13-CV-489, 2015 WL
1508857, at *2 (M.D. N.C. Apr. 1, 2015). “Ordinarily,
rebuttal evidence may be introduced only to counter new facts
presented in the defendant's case in chief. Such new
facts might include ‘surprise' evidence presented
by the defendants. Permissible rebuttal evidence also
includes evidence unavailable earlier through no fault of the
plaintiff.” Allen v. Prince George's Cnty.,
Md., 737 F.2d 1299, 1305 (4th Cir. 1984).
rebuttal reports “may cite new evidence and data so
long as the new evidence and data is offered to directly
contradict or rebut the opposing party's expert.”
Withrow v. Spears, 967 F.Supp.2d 982, 1002 (D. Del.
2013) (quoting Glass Dimensions, Inc. ex rel. Glass
Dimensions, Inc. Profit Sharing Plan & Trust v. State St.
Bank & Trust Co., 290 F.R.D. 11, 16 (D. Mass.
2013)). “Expert reports that simply address the same
general subject matter as a previously-submitted report, but
do not directly contradict or rebut the actual contents of
that prior report, do not qualify as proper rebuttal or reply
reports.” Boles, 2015 WL 1508857, at *2
(quoting Withrow, 967 F.Supp.2d at 1002); E.
Bridge Lofts Prop. Owners Ass'n, Inc. v. Crum &
Forster Specialty Ins. Co., No. 2:14-CV-2567-RMG, 2015
WL 12831677, at *1 (D.S.C. July 9, 2015).
Rule 26(e), litigants have a duty to supplement or correct
discovery responses that are incomplete or incorrect in some
material respect, and with respect to expert reports, a
party's duty to supplement extends both to information
included in the report and to information provided during the
expert's deposition. Fed.R.Civ.P. 26(e).
Rule 26(e) envisions supplementation when a party's
discovery disclosures happen to be defective in some way so
that the disclosure is incorrect or incomplete and,
therefore, misleading. It does not cover failures or omission
because the expert did an inadequate or incomplete
preparation. To construe supplementation to apply whenever a
party wants to bolster or submit additional expert ...