Overturning Expert Witness Exclusion Based On Failure To Comply With Discovery Deadline

Second circuit concludes that the trial court discovery ruling “was susceptible to some misunderstanding,” that sanctions were unfairly imposed only on one party after both parties failed to comply, that expert testimony was essential on the issue of causation, and that there was no prejudice in permitting the expert testimony, in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206 (2d Cir. July 6, 2009) (No. 08-0639-cv)

Trial courts frequently impose discovery deadlines, including for expert testimony, in civil cases. In a recent opinion, the Second Circuit concluded the trial court erred in excluding expert testimony based on a party's non-compliance with the court’s discovery order.

In the case, after the defendant’s barge caused an allision (or “collision between a moving vessel and a stationary object”) with plaintiff’s bulkhead, a suit for damages was filed. Before trial, the court ordered that:

“on or before March 22, 2006, the parties shall provide to the Court such information as they reasonably believe will enable the Court to fulfill the gatekeeping responsibilities imposed upon it by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).”
Zerega, 571 F.3d at 209 (quoting trial court ruling).


The day before the court deadline, the defendant moved in limine to exclude the plaintiff’s expert on causation and damages. The plaintiff did not file any motions prior to the deadline. Two months later, the plaintiff filed affidavits concerning four trial witnesses, including two experts. The trial court then excluded the two defense expert witnesses since:

“neither the docket sheet . . . nor the Court’s chamber’s file contains any record of submissions having been made by Hornbeck, in accordance with the Court’s March 9, 2006 order, that would have enabled the Court to determine, as required by Daubert, the propriety of permitting [experts] Messrs. Ellman and Power to present opinion testimony.”
Zerega, 571 F.3d at 212 (quoting trial court ruling).


The plaintiff was permitted to present expert testimony at the bench trial, but the defendant was not. After the trial, the court issued a judgment concluding the defendant was liable for more than $1.5 million in damages. See Zerega Avenue Realty Corp. v. Hornbeck Offshore Transportation, LLC, No. 04 Civ. 9651 (S.D.N.Y. Oct. 23, 2007) (findings of fact and conclusions of law). One of the issues on appeal concerned the exclusion of the defense expert witnesses.

The Second Circuit concluded that the trial court abused its discretion in issuing the discovery order. First, the discovery order “was susceptible to some misunderstanding, stating its requirement in terms of what the parties themselves considered to be required for the Court to meet its Daubert obligation.” Zerega, 571 F.3d at 213 (footnote omitted). The circuit noted that both parties did not comply with the discovery order, yet evidence sanctions were imposed solely on the defendant. The Second Circuit noted the expert testimony of one witness was “critical” on the causation issue since he opined that the bulkhead collapse was caused by horizontal forces applied from the direction of the land against a deteriorated, unattached, and undermined platform and not by a barge strike.” Zerega, 571 F.3d at 213. The second expert “would have offered an opinion, based on his inspection of the bulkhead, that the allision did not occur.” The trial court heard solely from the plaintiff’s expert on the causation issue. Finally, the circuit noted there was no prejudice to the plaintiff in permitting the defense expert testimony. The plaintiff had deposed both experts “during discovery, and since they were prepared to testify, there would have been no need for a continuance.” Zerega, 571 F.3d at 213.

While trial courts are permitted substantial discretion to manage discovery before trial, the Zerega case shows some of the limits to this discretion.

For another evidence issue recently considered in the Zerega case, concerning authentication of photographs, see Photograph Excluded For Failure To Meet Foundational Requirement.

Federal Rules of Evidence
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