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Providence Piers, LLC v. Smm New England, Inc.

United States District Court, D. Rhode Island

November 6, 2014

PROVIDENCE PIERS, LLC, Plaintiff,
v.
SMM NEW ENGLAND, INC., Defendant.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge.

Defendant, SMM New England, Inc. ("SMM"), moves to strike George J. Geisser, III ("Geisser"), the designated expert of Plaintiff, Providence Piers, LLC, because his expert report is inadequate under Fed.R.Civ.P. 26(a)(2)(B) and his methodology is unreliable under Fed.R.Evid. 702. (Def.'s Mot., ECF No. 91.) Although Plaintiff has undeniably failed to comply with the dictates of Rule 26(a)(2)(B) and this failure is inexcusable, this Court deems preclusion to be too severe a sanction at this juncture. Accordingly, SMM's motion is DENIED WITHOUT PREJUDICE.

I. Background

Plaintiff's claims of strict liability, negligence, trespass, nuisance, and tortious interference with Plaintiff's use of its real property all arise from SMM's practice of stacking scrap on land directly adjacent to Plaintiff's property. Plaintiff alleges that the enormous weight of these scrap piles damaged the buildings on its property. After filing this action, Plaintiff submitted a claim to its insurer seeking coverage for the damage. In the course of investigating the claim, Plaintiff's insurer retained Exponent, Inc. ("Exponent"), a technical consulting firm, to investigate the cause of the damage. Exponent conducted its investigation and compiled a report detailing its investigative efforts and conclusions.

During discovery, SMM learned of the Exponent report and strove to get its hands on it. Magistrate Judge Patricia A. Sullivan ordered Plaintiff's insurer to produce the report. (ECF No. 76.) The report concluded that "differential settlement" was causing damage to the buildings on Plaintiff's property and that, although this differential settlement predated SMM's scrap-metal operations, SMM's operations exacerbated the problem.

On the deadline for disclosing its expert witnesses, Plaintiff designated Geisser as its sole expert witness. In connection with this disclosure, Plaintiff also produced Geisser's expert report. (Geisser Report, Ex. B to Def.'s Mot., ECF No. 91-3.) SMM contends that this report fails to comply with Rule 26(a)(2)(B) and that, therefore, Geisser must be precluded from testifying as an expert in this case.

II. Discussion

Federal Rule of Civil Procedure 26(a)(2)(B) requires that, in the case of a witness "retained or specially employed to provide expert testimony in the case, " a party's expert disclosure must be accompanied by a written report. Rule 26's written-report requirement is vital to ensuring that the opposing party can "prepare effectively for trial." Esposito v. Home Depot U.S.A., Inc. , 590 F.3d 72, 78 (1st Cir. 2009); see also Samaan v. St. Joseph Hosp. , 670 F.3d 21, 35 (1st Cir. 2012). "The requirement is self-executing and does not countenance selective disclosure." JJI Int'l, Inc. v. Bazar Grp., Inc., C.A. No. 11-206ML, 2013 WL 3071299, at *4 (D.R.I. Apr. 8, 2013). Conversely, the "[f]ailure to include information... that is specifically required by Rule 26(a)(2)(B)... frustrates the purpose of candid and cost-efficient expert discovery." Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico , 248 F.3d 29, 35 (1st Cir. 2001).

Rule 26 leaves no doubt about the detail that must be included in an expert report. The rule sets forth a list of the essential ingredients, including, inter alia, "a complete statement of all opinions the witness will express and the basis and reasons for them" and "the facts or data considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii).

In this case, the exceedingly brief Geisser Report falls well short of the mark in both respects. Viewed charitably, it contains the following three discernable opinions: (1) the "soils" on SMM's property, which "are not stable or capable of supporting" the "substantially heavy load" created by SMM's scrap-metal operations, "are being pressurized, and[, ] because of the close proximity to [Plaintiff's] Buildings, the supporting soil, primarily below the south walls, is being affected"; (2) "the loading placed on the unstable soils, coupled with the vibrations being caused by the work on the SMM site, are the leading contributors to the ongoing settlement affecting [Plaintiff's] Buildings"; and (3) "without proper stabilization and repair of the affected walls, a collapse of one or more of the walls will occur in the not too distant future." (Geisser Report 1-2.)

The Geisser Report utterly fails to set forth the requisite "complete statement of... the basis and reasons for" Geisser's opinions. Fed.R.Civ.P. 26(a)(2)(B)(i). For starters, Geisser makes no attempt to state the basis for or reasons behind the first and third opinions quoted above. Regarding his second opinion, Geisser claims to base it on his recent observations of the property and the Exponent report. However, the Geisser Report does not describe his recent observations or explain why they support his opinions. Similarly, Geisser does not identify the pertinent passages of the Exponent report - beyond offering a general explanation of the report's conclusion "that the walls and floors adjacent to the SMM property are settling due in large part to the heavy loads, and vibrations from activity on the SMM site" - or explain how the Exponent report supports his opinions. (Geisser Report 1.) Finally, although Geisser refers to a comparison of "crack-monitor" readings, his report does not relay those readings, explain how they support his opinions, or even explain what they measure.

Far from conveying "the testimony the witness is expected to present during direct examination, together with the reasons therefor, " Fed.R.Civ.P. 26(a)(2)(B), adv. comm. note, 1993 Amendment, the report provides merely Geisser's bottom-line conclusions, divorced from any explanation of the supporting basis or reasons. Indeed, Plaintiff has not offered any argument that the Geisser Report complies with this aspect of Rule 26.

The Geisser Report also fails to contain "the facts or data considered by [Geisser] in forming" his opinions. Fed.R.Civ.P. 26(a)(2)(B)(ii). The Advisory Committee Note to the 2010 Amendment to Rule 26(a)(2)(B) explains that "the intention is that facts or data' be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients." See also JJI, Int'l, 2013 WL 3071299, at *4.

Although the Geisser Report discloses the fact of the occurrence of his two onsite inspections in 2014, his prior test borings and installation of helical piles in 2005 and 2006, and the comparison of crack-monitor readings, no additional facts or data are disclosed. The report does not explain what was done or observed at either of the 2014 site inspections. To the extent that any measurements were taken or tests conducted during these site inspections, both the fact that they occurred and the results need to be disclosed. Additionally, the report makes clear that Geisser took crack-monitor readings and compared them to earlier readings, but the report does not contain these readings. Therefore, the report fails to comply with Rule 26 by omitting facts or data ...


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