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WPS Inc. v. American Honda Motor Co. Inc

United States District Court, D. South Carolina, Columbia Division

September 22, 2017

WPS Inc. d/b/a Honda of Columbia, Plaintiff,
American Honda Motor Co. Inc., and PMJ Automotive of South Carolina, LLC, Defendants.



         Through 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.

         The matter is before the court on AHM's motion to strike Plaintiff's Rebuttal Expert Reports.[1] ECF No. 74. For the reasons set forth below, the motion is granted in part.


         Under a 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.[2]

         On July 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.

         Plaintiff 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.

         In its 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.


         Pursuant 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).

         Rebuttal 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).

         However, 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).

         Under 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 ...

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