United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Government's motion to
exclude expert testimony of Gregg Ness for failure to produce
an expert report (Dkt. No. 75). For the reasons set forth
below, the Court denies the motion.
United States filed this action on July 15, 2016, to acquire
a restrictive easement over 269 acres of land adjacent to the
Marine Corps Air Station in Beaufort, South Carolina, to
protect flight operations. The issue in this case is the
compensation due for the property taken. Defendants allege
that Southern Current LLC, a developer of solar arrays,
entered into an option agreement with them for the
construction of a solar array on land adjacent to the
property. They also allege Southern Current would have
entered into a lease for the development of a solar array on
the property had the United States not condemned an easement
on the property. Defendants plan to seek recovery of the
value of the leases, allegedly about $6 million.
August 1, 2017, the Court permitted Defendants' late
identification of a witness from Southern Current. (Dkt. No.
59.) Defendants identified Mr. Ness, the company's
general counsel, as a fact witness "to testify as to the
contract between landowners and Southern Current." (Dkt.
Nos. 75-3 & 75-4.) On August 20, 2017, the Government
moved for leave to identify an expert witness on the proposed
solar arrays. (Dkt. No. 63.) On September 20, the Government
deposed Mr. Ness as a fact witness. On September 28, the
Court granted the Government's motion and ordered that
each side may "disclose a solar expert and report by
November 3, 2017" and that the identified solar experts
may be deposed by December 1, 2017. (Dkt. No. 71.) On
November 3, Defendants named Mr. Ness as its solar expert.
The Government did not re-depose him as an expert.
Defendants' disclosure of Mr. Ness as an expert stated,
"Because Mr. Ness' proffered testimony concerns his
personal knowledge and involvement with this and other solar
farm projects, the nature of Mr. Ness' testimony will be
that of a fact witness, rather than an expert witness."
(Dkt. No. 79-4.) Defendants provided no expert report for Mr.
Ness, instead providing a copy of his September 20, 2017
deposition signed by Mr. Ness. Defendants assert that signed
deposition is a sufficient disclosure for a non-retained
expert under Rule 26(a)(2)(C).
January 8, 2018, the Government moved to exclude Mr. Ness
from offering expert opinion testimony. The Government does
not object to Mr. Ness as a fact witness.
of the Federal Rules of Civil Procedure provides that
"[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless."
Fed.R.Civ.P. 37(c)(1). Local Civil Rule 16.02(D)(2) provides
that witnesses identified in the last twenty-eight days of
the discovery period are presumed to be untimely identified,
absent a showing of good cause.
basic purpose of Rule 37(c)(1) [is] preventing surprise and
prejudice to the opposing party." S. States
Rack & Fixture, Inc. v. Sherwin- Williams Co., 318
F.3d 592, 596 (4th Cir. 2003). Thus, the district court has
broad discretion to determine whether a nondisclosure of
evidence is substantially justified or harmless. Id.
at 597. "[I]n exercising its broad discretion to
determine whether a nondisclosure of evidence is
substantially justified or harmless for purposes of a Rule
37(c)(1) exclusion analysis, a district court should be
guided by the following factors: (1) the surprise to the
party against whom the evidence would be offered; (2) the
ability of that party to cure the surprise; (3) the extent to
which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party's explanation for its failure to disclose the
identified Mr. Ness as an expert witness. The Government
asserts that he is required to produce an expert report under
Rule 26(a)(2)(B). Defendants assert that Mr. Ness is only
required to produce an expert disclosure under Rule
26(a)(2)(C) and that Mr. Ness has complied with that
Whether an expert report under Rule 26(a)(2)(B) is
26(a)(2) provides for two different types of disclosure of
expert opinions. Rule 26(a)(2)(B) requires experts who are
"retained or specially employed to provide expert
testimony in the case or ... whose duties as the party's
employee regularly involve giving expert testimony" to
disclose an extensive expert report. Rule 26(a)(2)(C)
requires experts who are not so retained or employed to
provide a more summary disclosure of the ...