The Court of Appeals for the Fifth Circuit recently held that the failure to request an extension of time did not warrant the exclusion of a critical expert’s report as a discovery sanction. In re: Complaint of C.F. Bean, LLC, 841 F.3d 365 (5th Cir. 2016) a boater’s estate brought a wrongful death action against a dredge-pipe owner and operators whose fishing boats outboard engine struck an underwater dredge-pipe, flipped into the boat, and struck the decedent. The dredge-pipe owner and operators filed a third party complaint for contribution and indemnity against the manufacturer of the outboard motor. The claims in the principal lawsuit were settled and the district court excluded the owners and operators expert testimony and granted summary judgment to the dredge-pipe owners and operators.
The expert in question had submitted a report and during a summary judgment proceeding submitted a supplemental report. This report was subsequent to a cutoff date. Accordingly the court granted a motion to strike the report. On appeal, the question was whether the sanction was appropriate. The Court of Appeals discussed the factors to determine whether a district court abused its discretion by excluding testimony as a sanction for violation of a discovery order. The court held that it did not saying,
“Notwithstanding the wide latitude we give district courts in deciding discovery matters, excluding Fritsch’s second report and his testimony was not the appropriate sanction in this case. Bean’s explanation for not submitting a complete expert report by the disclosure deadline is reasonable. Although Bean cannot explain why it did not move to extend the deadline, there is no indication of bad faith on Bean’s part. The expert report and testimony were essential to Bean’s case. And a continuance would cure much of the prejudice to SMC from Bean’s late disclosure. On these facts, excluding critical expert testimony was disproportionately harsh for what amounts to failure to request an extension of the expert disclosure deadline. More appropriate sanctions include allowing SMC to re-depose and rebut Fritsch, and awarding SMC costs and attorneys’ fees for this additional discovery.).”