The opinion of the court was delivered by: James P. O'Hara U.S. Magistrate Judge
This is a class action brought by the former and current employees of defendants' retail stores. Plaintiffs allege that defendants breached the terms of their compensation plans and violated the Kansas Wage Payment Act by underpaying commissions to thousands of employees as a result of systematic flaws in defendants' computer systems. The case is again before the undersigned U.S. Magistrate Judge, James P. O'Hara, on disputes over expert discovery. Plaintiffs have moved the court to permit them to produce a second round of supplemental reports from their experts (doc. 432). Plaintiffs have also moved to strike a supplemental report of defendants' expert that was produced on March 11, 2013 (doc. 439). Although the court concludes that the supplemental expert reports of both sides' experts contain revisions that cannot be deemed proper supplementation under Fed. R. Civ. P. 26(e), the court will nonetheless permit them, in large part, to be served under Fed. R. Civ. P. 37(c). Accordingly, plaintiffs' motion for leave to supplement expert reports is granted and plaintiffs' motion to strike the report of defendants' expert is granted in part and denied in part.
The parties exchanged the initial reports of their experts on October
15, 2012. Plaintiffs served a report authored by both Barry Ezell and
Nile Nickel of Balance Engines, LLC, and a separate report of Margaret
H. Dunham. Defendants served the report of Janet
R. Thornton. On December 12, 2012, plaintiffs served
timely*fn1 supplemental expert reports of both Balance
Engines and Dunham. Defendants, upon the court's order,*fn2
served a supplemental expert report of Thornton on December
20, 2012. The parties exchanged rebuttal expert reports on February
14, 2013. Expert depositions followed. Plaintiffs deposed Thornton on
February 28, 2013. Defendants deposed Dunham on March 1, 2013, Nickel
on March 5, 2013, and Ezell on March 6, 2013. During the depositions,
each expert testified that his or her calculations could be refined in
ways that would make his or her conclusions more accurate. At the
pretrial conference held on March 7, 2013, plaintiffs informed the
court of their intention to file supplemental expert reports to
correct inaccuracies in expert calculations. Defendants objected to
the supplementation, and the court directed plaintiffs to file a
motion seeking leave to supplement.
A. Plaintiffs' Second Supplemental Expert Reports
On March 11, 2013, plaintiffs filed their motion for leave to produce supplemental reports of their experts. Plaintiffs represent that their experts have "discovered information about their calculations that lead them to believe that making certain revisions to their code will result in more accurate commissions calculations for the class."*fn3 Plaintiffs filed their proposed second supplemental expert reports on April 17, 2013.*fn4 Plaintiffs assert that the revisions therein do not change their experts' "overall methodology."*fn5
Defendants contend that plaintiffs' proposed modifications "necessarily require a change in their experts' previous methodology."*fn6 Citing an affidavit by their expert, Thornton, defendants argue that the proposed revisions would alter five of the six stages of Balance Engines's methodology. Thus, rather than supplement previous expert reports, plaintiffs would be "wholly revis[ing] them."*fn7 Defendants also argue that they would be prejudiced by the late supplementations because March 25, 2013, was the deadline for dispositive and Daubert motions, and because they have already spent time and money analyzing plaintiffs' past expert reports, and preparing for and conducting the depositions of plaintiffs' experts.
B. Defendants' Second Supplemental Expert Report
On March 11, 2013, defendants served a second supplemental report of Thornton without requesting or obtaining the court's leave. Thornton's second supplemental report purports to address issues raised by plaintiffs' counsel during Thornton's deposition, admissions during the depositions of plaintiffs' experts, and the rebuttal reports of plaintiffs' experts.*fn8 According to defendants, Thornton's report concludes that her underlying methodology and conclusions were sound, but makes discrete updates to her programming code.
On March 18, 2013, plaintiffs moved to strike Thornton's second
supplemental report. Based on plaintiffs' motion to strike, defendants
agreed to withdraw twenty-eight paragraphs of Thornton's
report.*fn9 Plaintiffs contend, however, that fifteen
additional paragraphs contain improper sur-rebuttal to the rebuttal
reports of plaintiffs' experts and must be stricken.*fn10
Plaintiffs state that they do not object to the portions of
Thornton's report correcting inaccurate calculations, so long as plaintiffs are
permitted to serve revised expert reports doing the same.
Fed. R. Civ. P. 26 governs the disclosure of expert testimony. It provides, in relevant part, that an expert must submit a report that contains "a complete statement of all opinions the witness will express and the basis and reasons for them."*fn11 Courts may set a time by which the parties must submit their experts' reports.*fn12 A party bears a continuing obligation to supplement expert reports if the party later learns the information initially provided is incomplete or incorrect.*fn13 When the expert disclosure rules are violated, Fed. R. Civ. P. 37(c) mandates that the information or witness not fully disclosed is barred, unless the failure to disclose was "substantially justified or harmless."*fn14
A. Do the Supplemental Reports Violate Rule 26?
The scheduling order set October 15, 2012, as the deadline for filing expert reports and December 12, 2012 (i.e., forty days before the discovery deadline), as the deadline for supplementing expert reports.*fn15 The latest round of supplemental reports clearly fall outside those scheduling-order deadlines.
Looking to the procedural rules governing supplementation, Rule 26(e)(2) requires that supplemental expert information be disclosed by the time pretrial disclosures are made under Rule 26(a)(3), i.e., thirty days before trial unless otherwise set by the court. In this case, the pretrial order-which now controls these proceedings-set the pretrial disclosure deadline at twenty-one days before trial.*fn16 Courts have made clear, however, that Rule 26(e)(2) does not permit a party to use the supplementing procedure to submit an amended or rebuttal report not based on new information. Rather, "supplementation may only be based upon additional or corrective information that was unavailable when the expert made his or her initial report."*fn17 "A supplemental expert report that states additional opinions or rationales or seeks to 'strengthen' or 'deepen' opinions expressed in the original expert report exceeds the bounds of permissible supplementation and is subject to exclusion under Rule 37(c)."*fn18 Supplemental reports with relatively minor changes that simply correct inaccuracies in the original report may be permitted, however.*fn19
Such was the case in In re Cessna 208 Series Aircraft Prods. Liab. Litig.*fn20 There, U.S. District Judge Kathryn H. Vratil, who is also the presiding judge in the present wage case, permitted the filing of a supplemental expert report which made two minor changes to the expert's opinions. During his deposition, the expert concluded that he had included three incidents in his calculations that failed to meet his criteria and should have been eliminated from his analysis. The expert then revised his report to reflect changes to his opinions and findings that occurred when the extraneous data was eliminated. Judge Vratil characterized this as "simply correcting inaccuracies in the original report" and found the supplementation proper under Rule 26(e).*fn21
Applying these principles below, the court finds that only portions of the proposed reports of plaintiffs' experts are proper Rule 26(e) supplements, while none of the report of ...