FAIELLA v. SUNBELT RENTALS, INC.

[D.I. 305]

[D.I. 307]

[D.I. 308]

[D.I. 309]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DOMINIC FAIELLA, Civil No. 18-11383 (RMB/AMD)

Plaintiff,

v.

SUNBELT RENTALS, INC., et al., MEMORANDUM OPINION

AND ORDER

Defendants.

APPEARANCES:

Anthony J. Leonard, Esq.

Benjamin E. Smith, Esq.

Law Offices of Anthony J. Leonard, LLC

1820 Chapel Avenue West

Suite 195

Cherry Hill, NJ 08002

Counsel for Plaintiff Dominic Faiella

Thomas J. Wagner, Esq.

Amy Lynn Wynkoop, Esq.

Law Offices of Thomas J. Wagner, LLC

8 Penn Center, 6th Floor

1628 John F. Kennedy Blvd.

Philadelphia, PA 19103

Counsel for Defendant Sunbelt Rentals, Inc.

Derrick G. Timms, Esq.

Drew J. Parker, Esq.

Parker Young & Antinoff, LLC

2 Eves Drive, Suite 200

Marlton, NJ 08053

Counsel for Defendant Live Nation Worldwide, Inc.

DONIO, Magistrate Judge:

This matter comes before the Court by way of four motions

filed by Plaintiff, Dominic Faiella, seeking to strike various

discovery amendments of Defendant Sunbelt Rentals, Inc.

(hereinafter, “Sunbelt”). Two of the motions seek to strike

discovery amendments by which Sunbelt provided surveillance

evidence after the close of discovery – a motion [D.I. 305] to

strike a May 12, 2021 discovery amendment by which Sunbelt provided

to Plaintiff surveillance obtained in March 2021, and a motion

[D.I. 309] to strike a March 30, 2020 discovery amendment by which

Sunbelt provided surveillance information obtained in September

2019. In addition, Plaintiff filed a motion [D.I. 307] to strike

Sunbelt’s December 18, 2020 and April 8, 2021 discovery amendments

by which Sunbelt provided information in connection with the report

of its expert, Paul Guthorn, MSME, P.E. Finally, Plaintiff filed

a motion [D.I. 308] to strike a June 10, 2020 discovery amendment

by which Sunbelt amended its interrogatory responses to identify

two new fact witnesses. The Court held oral argument on the record

on these motions on January 19, 2022 and reserved decision at that

time. The Court has considered the submissions of the parties and

the arguments of counsel. For the reasons that follow, Plaintiff’s

motions to strike the March 30, 2020, June 10, 2020, and May 12,

2021 discovery amendments by which Sunbelt provided surveillance

evidence and the names of two new fact witnesses are granted, and

Plaintiff’s motion to strike the December 18, 2020 and April 8,

2021 discovery amendments by which Sunbelt provided supplemental

information in connection with the report of Paul Guthorn is

denied.

This case arises out of injuries allegedly sustained by

Plaintiff when a Polaris Ranger off-road utility vehicle he was

operating overturned, purportedly causing “severe and permanent

injuries[.]” (Fourth Am. Compl. [D.I. 97], p. 3, ¶ 10.) The Ranger

was allegedly owned by Sunbelt and leased to Live Nation Worldwide,

Inc. (hereinafter, “Live Nation”), another defendant in this

matter. (Id. at p. 3, ¶ 14.) Plaintiff avers that the “safety cab

net on the driver’s side of the Ranger was intentionally removed”

either by Sunbelt or by Live Nation at some point prior to the

date the Ranger overturned. (Id. at p. 3, ¶¶ 11-12.)

Pursuant to this Court’s September 6, 2019 Scheduling

Order, discovery in this case closed on October 30, 2019. (Am.

Scheduling Order [D.I. 106], Sept. 6, 2019, p. 2, ¶ 2.) All of the

motions presently before the Court relate to discovery that Sunbelt

produced after the close of discovery. With respect to the three

motions regarding Sunbelt’s fact discovery amendments, Plaintiff

generally argues that Sunbelt was required under Federal Rule of

Civil Procedure 16 to seek leave of court and demonstrate good

cause before providing discovery beyond the fact discovery

deadline. Plaintiff further argues that Sunbelt’s failure to

demonstrate good cause under Rule 16 warrants striking these late

discovery amendments. With respect to Plaintiff’s motion to strike

the discovery amendments by which Sunbelt provided data in

connection with its expert report, Plaintiff argues that Sunbelt

violated Federal Rule of Civil Procedure 26(a) and is subject to

sanctions pursuant to Federal Rule of Civil Procedure 37(c).

Sunbelt asserts that all four motions should be evaluated pursuant

to the factors set forth in Meyers v. Pennypack Woods Home

Ownership Ass’n, 559 F.2d 894, 904 (3d Cir. 1997), overruled on

other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113 (3d

Cir. 1985), which a court considers when deciding whether to

exclude evidence as a discovery sanction. Sunbelt argues that

because any prejudice to Plaintiff arising from the belated

discovery amendments can be cured by allowing additional

discovery, the Pennypack factors weigh against striking the

discovery amendments.

In considering the motions to strike Sunbelt’s belated

production of fact discovery, the starting point of the Court’s

analysis is Federal Rule of Civil Procedure 16, which provides

courts with the “‘discretion to manage the schedule of

litigation[.]’” Carroll v. Delaware River Port Auth., No. 13-2833,

2015 WL 12819181, at *3 (D.N.J. Mar. 31, 2015) (quoting Williams

v. Sullivan, No. 08-1210, 2011 WL 2119095, at *4 (D.N.J. May 20,

2011)). Rule 16(b)(4) states that “[a] schedule may be modified

only for good cause and with the judge’s consent.” FED. R. CIV. P.

16(b)(4). Good cause in this context is established when “the party

seeking the extension” can “show that the deadlines set forth in

the scheduling order ‘cannot reasonably be met despite the

diligence of the party seeking the extension.’” Williams, 2011 WL

2119095, at *4 (quoting FED. R. CIV. P. 16(b) advisory committee

note to 1983 Amendment). “Good cause may also be satisfied if the

movant shows that the inability to comply with a scheduling order

is ‘due to any mistake, excusable neglect or any other factor which

might understandably account for failure of counsel to undertake

to comply with the Scheduling Order.’” Id. (quoting Newton v. Dana

Corp., Parish Div., No. 94–4958, 1995 WL 368172, at *1 (E.D. Pa.

June 21, 1995)). If the movant cannot demonstrate good cause, “the

scheduling order shall control.” Id. (citations omitted). “As the

Third Circuit has stated, ‘scheduling orders are at the heart of

case management. If they can be disregarded without a specific

showing of good cause, their utility will be severely impaired.’”

Lasermaster Int’l Inc. v. Netherlands Ins. Co., No. 15-7614, 2021

WL 3616197, at *2 (D.N.J. Aug. 13, 2021)(quoting Koplove v. Ford

Motor Co., 795 F.2d 15, 18 (3d Cir. 1986)). Courts in this District

have noted that the focus of a Rule 16 analysis is the moving

party’s diligence and not prejudice to the non-moving party. See,

e.g., Lasermaster Int’l, 2021 WL 3616197, at *2 (“‘Rule 16(b)(4)

focuses on the moving party’s burden to show due

diligence.’”)(quoting Race Tires Am., Inc. v. Hoosier Racing Tire

Corp., 614 F.3d 57, 84 (3d Cir. 2010)); GlobespanVirata, Inc. v.

Texas Instruments, Inc., No. 03-2854, 2005 WL 1638136, at *3-4

(D.N.J. July 12, 2005)(same).

As noted above, Sunbelt argues that the instant motions

to strike should be decided by examination of the factors set forth

in Meyers v. Pennypack Woods. The Third Circuit in Pennypack

identified numerous factors that a court should consider when

deciding whether to exclude evidence as a sanction, including (1)

the prejudice or surprise to a party against whom evidence is

offered; (2) the ability to cure that prejudice; (3) the likelihood

of disruption to trial; (4) the bad faith or willfulness of the

party who did not comply with the disclosure rules; and (5) the

importance of the evidence to the proffering party’s case. See

Pennypack, 559 F.2d at 904-05; In re Mercedes-Benz Anti-Trust

Litig., 225 F.R.D. 498, 506 (D.N.J. 2005). Unlike the Rule 16(b)(4)

good cause analysis, a Pennypack analysis requires consideration

of prejudice to the non-moving party and the ability to cure such

prejudice.

In Lee v. Kmart Corp., No. 14-79, 2016 WL 4373694, at *1

(D.V.I. Aug. 15, 2016), another court addressed the intersection

of Rule 16 and the Pennypack factors. In Lee, the court denied the

plaintiff’s motion for an extension of time to file expert reports,

yet the plaintiff disregarded this ruling and nonetheless produced

expert reports after the expert discovery deadline. Lee, 2016 WL

4373694, at *2-3. The defendant in Lee moved to exclude the expert

witnesses as untimely. Id. at *3. In opposition to the motion, the

Lee plaintiff argued that “a motion for an extension of the

scheduling order and a motion to exclude witnesses require

different legal analyses[.]” Id. at *9. The Lee plaintiff further

argued that because the court did not engage in a Pennypack

analysis when deciding whether to extend the scheduling order

deadlines, the court’s denial of the request for an extension of

time under Rule 16(b)(4) did not preclude the plaintiff from filing

expert disclosures after the court-ordered deadline. Id. In

rejecting this argument, the Lee court noted that the plaintiff’s

“peculiar explanation suggests that a party can violate the

deadlines in a court’s scheduling order with impunity, and ignore

a court order denying an extension of the deadlines because, in

the final analysis, a party’s untimely disclosed witnesses must be

accepted unless an analysis under the Pennypack factors dictates

otherwise.” Id. The Lee court further noted that taking the

plaintiff’s argument “to its logical conclusion, a party need not

even file a motion to extend the deadlines since an adverse ruling

by the court can simply be ignored in anticipation of a second

bite at the apple with a Pennypack analysis.” Id. The Lee court

further found that adopting the plaintiff’s argument “would

vitiate the showing of ‘good cause’ required to modify scheduling

orders under Rule 16(b)(4); allow a party to ignore a court order

denying an extension of a discovery deadline; . . . and allow

parties to stand well-established rules and laws for litigation

and the Court’s authority to manage its docket on their head.” Id.

The analysis in Lee is instructive in determining

whether the instant motions should be decided pursuant to the good

cause standard of Rule 16 or analysis of the Pennypack factors. A

party requesting an extension of time to obtain discovery must

show good cause for the extension under Rule 16, and many courts

have denied such requests upon a finding of lack of diligence,

without then considering the Pennypack factors. See, e.g., Turner

v. Schering-Plough Corp., 901 F.2d 335, 341 n.4 (3d Cir. 1990)

(where district court refused to reopen discovery period to allow

plaintiff to obtain evidence needed to oppose summary judgment,

Third Circuit found no abuse of discretion, noting that documents

could have been discovered during discovery period and that “Rule

16 ‘scheduling orders are at the heart of case management,’ and if

they can be flouted every time counsel determines she made a

tactical error in limiting discovery ‘their utility will be

severely impaired’”)(quoting Koplove, 795 F.2d at 18); Baker v.

U.S. Marshal Serv., No. 12-494, 2014 WL 2534927, at *2 (D.N.J.

June 5, 2014)(denying parties’ requests for extension of time to

complete discovery because parties did not act diligently to

complete discovery and failed to demonstrate good cause under Rule

16); Mathieux v. Bally’s Atlantic City, No. 05-3551, 2006 WL

3733291, at *1 (D.N.J. Dec. 15, 2006)(court denied request for

liability discovery because plaintiff failed to demonstrate good

cause to extend deadline), reconsideration denied by 2006 WL

3833590, at *1 (D.N.J. Dec. 29, 2006); Newton, 1995 WL 368172, at

*1 (denying motion to extend time to complete discovery for lack

of good cause where “nothing prevented plaintiff from complying

with the discovery schedule”).

This Court finds that when a party does not first obtain

an extension of time to complete discovery, and instead obtains

and/or produces discovery in disregard of a scheduling order, the

party must be held to the same good cause standard of Rule 16

before including such discovery in a final pretrial order.

Otherwise, if a court only considers the Pennypack factors when a

party obtains discovery in contravention of a scheduling order, a

party may strategically not seek an extension of time in order to

evade the scheduling order and evade the good cause standard.1

1 In fact, in this case, Sunbelt previously sought permission to

take the deposition of a non-party witness, Jeff Grimm, after the

close of fact discovery. (See Letter from Thomas J. Wagner, Esq.

and Amy L. Wynkoop, Esq. [D.I. 140], Feb. 7, 2020, p. 3.) This

Court denied Sunbelt’s request, without prejudice to Sunbelt

filing a formal motion, finding no good cause to obtain the

deposition after the close of discovery as the potential witness

“was identified well beyond the deadline for factual discovery.”

(See Transcript of Proceedings [D.I. 246], Mar. 24, 2020, p. 11:8-

12:3; Text Order [D.I. 158], Mar. 24, 2020.) Sunbelt never filed

Accordingly, a party who has produced discovery in disregard of a

scheduling order deadline must demonstrate good cause for the

failure to obtain discovery within the discovery period. As the

Third Circuit stated in Koplove, if scheduling orders “can be

disregarded without a specific showing of good cause, their utility

will be severely impaired.” Koplove, 795 F.2d at 18. Indeed, “[a]t

some point, discovery must end so that the parties can determine

the total universe of facts and evidence relevant to a case in

order to prepare for trial.” Gautier-James v. Hovensa, LLC, No.

06-106, 2011 WL 4500153, at *9 (D.V.I. Sept. 27, 2011).

Having found that Sunbelt must demonstrate good cause

for its belated fact discovery amendments, the Court turns to

Plaintiff’s motions to strike the amendments by which Sunbelt

provided surveillance evidence and the identities of two fact

witnesses after the close of fact discovery. The Court first

considers the motion [D.I. 309] to strike the surveillance evidence

that was obtained prior to the close of fact discovery but was not

produced until five months after the fact discovery deadline.

Sunbelt hired a private investigator who conducted surveillance of

Plaintiff on September 10, 2019 and generated a report dated

a formal motion and did not subsequently seek permission to obtain

or produce any other discovery out of time. Then, Sunbelt obtained

and/or produced the discovery at issue in the present motions

without seeking to extend the discovery period and in disregard of

the scheduling order deadlines and now asks for application of the

Pennypack factors to permit the late discovery.

September 18, 2019. (Cert. of Counsel in Supp. of Def. Sunbelt

Rentals, Inc.’s Opp. to Pl.’s Mot. to Strike, Ex. A [D.I. 314-4].)

Sunbelt does not dispute that it received the report before the

close of fact discovery and that it did not disclose the report to

Plaintiff until March 30, 2020. Sunbelt states in its opposition

brief, however, that the failure to produce the surveillance within

the discovery period was “simply an oversight.” (Def. Sunbelt

Rentals, Inc.’s Br. in Supp. of their Opp. to Pl. Dominic Faiella’s

Mot. to Strike Sunbelt’s March 30, 2020 Discovery Amendment [D.I.

314], p. 4.) At oral argument, counsel for Sunbelt represented

that the failure to timely disclose the surveillance was counsel’s

mistake and that she promptly turned over the evidence upon

realizing that it had not been disclosed previously. Plaintiff

notes that the surveillance evidence was produced three days after

Plaintiff produced his medical expert report. (Letter from Anthony

J. Leonard, Esq. [D.I. 319], Sept. 24, 2021, p. 1.) The Court also

notes that the surveillance was produced less than a week after

the Court denied Sunbelt’s request to take the deposition of a

non-party witness, Jeff Grimm, after the close of fact discovery.

The Court finds that Sunbelt fails to demonstrate good

cause for an extension of discovery to permit the late production

of the September 2019 surveillance. As noted above, “good cause”

under Rule 16(b) primarily considers the diligence of the party

seeking the amendment. Good cause may be satisfied upon a showing

that an inability to comply with a scheduling order is due to

mistake, excusable neglect or other factors that may account for

the failure to comply with a scheduling order. See Newton, 1995 WL

368172, at *1. However, “carelessness is not compatible with a

finding of diligence and offers no reason for a grant of relief.”

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.

1992); see also Graham v. Progressive Direct Ins. Co., 271 F.R.D.

112, 121 (W.D. Pa. 2010)(“tactical errors and delays by experienced

attorneys, such as those made in this action, do not demonstrate

that [p]laintiffs acted with diligence to this [c]ourt”). Here,

while counsel represented at oral argument that the failure to

timely produce the surveillance evidence was the result of attorney

error, counsel has not demonstrated what efforts were made to

ensure that all discovery had been timely produced, and there has

not been a factual showing sufficient to support a finding that

the failure to produce the surveillance was due to inadvertent

error. In addition to the lack of an adequate explanation regarding

counsel’s purported error, the Court also notes that the

surveillance evidence is not the only discovery that counsel

purportedly mistakenly failed to timely produce. As demonstrated

by the numerous motions to strike presently before this Court and

Sunbelt’s effort to name in the joint final pretrial order several

witnesses that were not previously specifically identified in

discovery,2 this is not an isolated instance of inadvertent error.

Moreover, the timing of the production – three days after Plaintiff

produced his medical expert report – does not support Sunbelt’s

representation that the failure to produce surveillance evidence

within the discovery period was attributable to a mistake. The

Court therefore concludes that Sunbelt’s bare assertion of

attorney error, without more, fails to demonstrate the good cause

required by Rule 16(b) for an extension of the discovery schedule

to include surveillance evidence obtained but not produced within

the discovery period. As such, Plaintiff’s motion [D.I. 309] to

strike Sunbelt’s March 30, 2020 discovery amendment shall be

granted.

The Court next considers Plaintiff’s motion [D.I. 305]

to strike the updated surveillance evidence obtained by Sunbelt

more than a year after the close of discovery. Although Plaintiff

was placed under surveillance in September 2019, Sunbelt arranged

for new surveillance in March 2021, purportedly to obtain updated

footage since the trial of this matter has been delayed due to the

pandemic. (Def. Sunbelt Rentals, Inc.’s Br. in Supp. of its Opp.

to Pl. Dominic Faiella’s Mot. to Strike Def. Sunbelt Rentals,

2 This issue was raised in the parties’ proposed joint final

pretrial order and is set forth in letters from Plaintiff’s counsel

and Sunbelt’s counsel dated October 21, 2021. (See Letter from

Anthony J. Leonard, Esq. [D.I. 331], Oct. 21, 2021; Letter from

Amy L. Wynkoop, Esq. [D.I. 333], Oct. 21, 2021.)

Inc.’s May 12, 2021 Discovery Amendment [D.I. 311], p. 2.) Sunbelt

argues that it did not seek court approval before obtaining this

discovery out of time because “surveillance is typically arranged

when Plaintiff is not anticipating surveillance” and “it did not

occur to counsel to seek permission in advance of obtaining” the

updated surveillance. (Id. at pp. 10-11.) Sunbelt thus requests an

extension of the scheduling order deadlines nunc pro tunc for the

purpose of permitting the belated surveillance. (Id. at p. 11.)

Sunbelt also notes that Plaintiff supplemented his own discovery

after the close of discovery by producing a report from a medical

visit on July 20, 2021. (Id. at p. 6.)

The Court finds that Sunbelt fails to demonstrate good

cause to permit the surveillance evidence obtained in March 2021.

The Court rejects Sunbelt’s proffered excuse that asking for an

extension of time would have put Plaintiff on notice that he would

be placed under surveillance. Requesting permission for

surveillance does not necessarily render the surveillance

ineffective, particularly if the request is not specific as to the

date and time of surveillance. Sunbelt therefore could have sought

an extension of the scheduling order deadlines without setting

forth the specifics of the updated surveillance. Moreover, this

Court held conferences on March 9, 2021 and March 25, 2021, at

which time Sunbelt did not assert a need for updated discovery but

at the same time – on March 16, 2021 and March 21, 2021 – was

having Plaintiff surveilled in complete disregard of the

scheduling order deadlines. During the conference on March 25,

2021, the updated surveillance had already been performed, but

even at that time Sunbelt did not so advise the Court.3 In addition,

with respect to Sunbelt’s reference to Plaintiff’s production of

medical records after the close of discovery, it is unclear why

Sunbelt raises this issue, as Sunbelt does not seek any relief

regarding such discovery. Moreover, Plaintiff’s July 2021

production of records from a July 2021 doctor visit does not

justify Sunbelt’s decision to conduct surveillance after the close

of discovery, because the surveillance was completed in March 2021,

prior to Plaintiff’s updated treatment.4 Under these circumstances,

Sunbelt fails to demonstrate that it had good cause for obtaining

3 The report of the surveillance is dated March 25, 2021 but was

not turned over to Plaintiff until May 12, 2021. At oral argument,

counsel for Sunbelt could not identify the date on which she

received the surveillance report from the investigator. Sunbelt

filed a renewed motion for summary judgment on May 5, 2021 and

served the report one week later.

4 Furthermore, unlike surveillance evidence, which must be obtained

within the discovery period, medical records that do not exist as

of the close of discovery must nonetheless be produced pursuant to

Federal Rule of Civil Procedure 26(e). See Solis Haro v. Burger,

No. 18-2666, 2019 WL 4394532, at *1 (D. Ariz. Sept. 13,

2019)(“Ongoing medical treatment that Plaintiff has received does

not necessitate an extension of the discovery deadline. Instead,

updated medical records should be produced pursuant to Federal

Rule of Civil Procedure 26(e)(1).”); Arthur v. Atkinson Freight

Lines Corp., 164 F.R.D. 19 (S.D.N.Y. 1995) (under Rule 26(e),

plaintiff had duty to produce updated medical records where medical

treatment for his alleged injuries was ongoing and affected the

claim for damages).

surveillance of Plaintiff in March 2021, and Plaintiff’s motion

[D.I. 305] to strike the May 12, 2021 amendment by which Sunbelt

provided this discovery shall therefore also be granted.

The Court next considers Plaintiff’s motion [D.I. 308]

to strike a June 10, 2020 discovery amendment, by which Sunbelt

amended its response to Plaintiff’s Interrogatory No. 3 to identify

two fact witnesses, Rick McCarty and Walter Schrenk from Rob’s

Towing. On May 6, 2019, Sunbelt provided a response to

Interrogatory No. 3 identifying “Rick Robs” from “Rob’s Towing

Center” as an individual with information relating to the accident

at issue in this case. (Def. Sunbelt Rentals, Inc.’s Br. in Opp.

to Pl. Dominic Faiella’s Mot. to Strike Sunbelt’s June 10, 2020

Discovery Amendment [D.I. 313], p. 1.) On July 3, 2019, Plaintiff

served a subpoena on Rob’s Towing and forwarded the documents

received in response thereto to Sunbelt in August 2019. (Cert. of

Counsel in Supp. of Def. Sunbelt Rentals, Inc.’s Opp. to Pl.’s

Mot. to Strike (hereinafter, “Wynkoop Cert.”), Ex. D [D.I. 313-

7].) These documents identified the drivers of trucks #45 and #60,

albeit not by the drivers’ names. (Id.) On June 10, 2020, more

than seven months after the close of discovery and ten months after

receiving documents from Rob’s Towing, counsel for Sunbelt sent an

email to opposing counsel stating that Sunbelt’s counsel spoke

with Kevin Wilson at Rob’s Towing, who advised that the drivers of

trucks #45 and #60 were Rick McCarty and Walter Schrenk. (Wynkoop

Cert., Ex. B [D.I. 313-5].) Sunbelt’s counsel further stated that,

pursuant to Federal Rule of Civil Procedure 26(e),

Sunbelt was “correct[ing]” its response to Interrogatory No. 3 to

identify Rick McCarty and Walter Schrenk. (Id.) Plaintiff contends

that Sunbelt’s updated interrogatory response was not a

“correction” under Rule 26(e) but was rather an improper discovery

amendment in violation of Rule 16(b). (Letter from Anthony J.

Leonard, Esq. [D.I. 320], Sept. 24, 2021, p. 2.)

The Court rejects Sunbelt’s effort to identify two new

fact witnesses after the close of fact discovery under the guise

of a “correction” under Rule 26(e). Rule 26(e) requires a party

who has responded to an interrogatory to “supplement or correct

its disclosure or response . . . if the party learns that in some

material respect the disclosure or response is incomplete or

incorrect, and if the additional or corrective information has not

otherwise been made known to the other parties during the discovery

process or in writing[.]” FED. R. CIV. P. 26(e). “‘[S]upplementation

under the Rules means correcting inaccuracies, or filling the

interstices of an incomplete [response] based upon information

that was not available at the time of the initial disclosure.’”

DAG Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 109 (D.D.C.

2005)(quoting Keener v. United States, 181 F.R.D. 639, 640 (D.

Mont. 1998)). Rule 26(e) “‘does not, however, bestow upon litigants

unfettered freedom to rely on supplements produced after a court-

imposed deadline . . . [.]’” Id. at 110 (quoting Reid v. Lockheed

Martin Aeronautics Co., 205 F.R.D. 655, 662 (N.D. Ga. 2001)). “‘In

short, Rule 26 imposes a duty on [the parties]; it grants them no

right to produce information in a belated fashion.’” Id. (quoting

Reid, 205 F.R.D. at 662).

Here, while Sunbelt refers to its discovery amendment as

a “correction,” the amendment does not constitute a proper

supplement under Rule 26(e). Sunbelt knew of Rob’s Towing’s

involvement in this matter at least as of the time it responded to

Interrogatory No. 3 in May 2019, and the documents identifying the

drivers of trucks #45 and #60 of Rob’s Towing were provided to

Sunbelt in August 2019. Sunbelt thus had more than two months

before fact discovery closed on October 30, 2019 to contact Rob’s

Towing and ask for the names of the drivers of trucks #45 and #60.

Sunbelt offers no explanation for its failure to request such

information within the discovery period and, consequently, fails

to demonstrate that the names of the truck drivers could not have

been obtained within the discovery period. Because Sunbelt could

have identified the names of these fact witnesses during the

discovery period, Rule 26(e) cannot serve as a “safe harbor” for

Sunbelt’s failure to timely obtain discovery. See DAG Enters., 226

F.R.D. at 110; see also Murphy by Murphy v. Harpstead, No. 16-

2623, 2019 WL 6650510, at *6 (D. Minn. Dec. 6, 2019)(“[T]here is

no dispute that the documents could have been gathered and produced

prior to the discovery deadline had any necessary preliminary work

been accomplished earlier. Therefore, the production of the . . .

documents at issue does not qualify as supplementation pursuant to

Rule 26(e).”), aff'd as modified, 2020 WL 256194 (D. Minn. Jan.

17, 2020). Furthermore, Sunbelt’s lack of diligence fails to

demonstrate good cause under Rule 16 for an extension of the

discovery period to include the names of these fact witnesses. As

Sunbelt fails to demonstrate that Rule 16(b) or Rule 26(e) provide

a basis for the belated amendment, Plaintiff’s motion [D.I. 308]

to strike Sunbelt’s June 10, 2020 discovery amendment shall also

be granted.

For the reasons above, the Court finds that striking

Sunbelt’s belated fact discovery amendments is appropriate given

Sunbelt’s failure to meet the good cause requirement of Rule 16.

The Court notes, however, that many courts turn to the Pennypack

factors upon finding that a party has failed to demonstrate good

cause under Rule 16. See, e.g., St. Clair Intellectual Prop.

Consultants, Inc. v. Matsushita Elec. Indus. Co., Ltd., No. 04-

1436, 2012 WL 1015993, at *7 (D. Del. Mar. 26, 2012)(“Having

determined that there is not good cause to amend the Scheduling

Orders, the Court will now consider whether exclusion of the

supplemental expert reports is appropriate under Federal Rule of

Civil Procedure 37.”), aff'd, 522 F. App’x 915 (Fed. Cir. 2013);

Rowe v. E.I. du Pont de Nemours & Co., No. 06-1810, 2010 WL 703210,

at *4 (D.N.J. Feb. 24, 2010)(considering Pennypack factors

“because the denial of [p]laintiffs’ request may have the practical

effect of excluding at trial the testimony of certain experts”).

Although the Court has determined such analysis is not required

given Sunbelt’s failure to comply with Rule 16, the Court finds

that consideration of the Pennypack factors further supports

striking the discovery amendments.

While the first three Pennypack factors do not favor

striking the evidence, the fourth factor weighs strongly against

permitting the late discovery amendments. As to the first two

Pennypack factors, prejudice and the ability to cure the prejudice,

Plaintiff does not assert prejudice, instead arguing only that the

appropriate standard for deciding the motions does not require

consideration of prejudice to Plaintiff. (See Letter from Anthony

J. Leonard, Esq. [D.I. 319], Sept. 24, 2021, p. 2; Letter from

Anthony J. Leonard, Esq. [D.I. 318], Sept. 24, 2021, p. 2; Letter

from Anthony J. Leonard, Esq. [D.I. 320], Sept. 24, 2021, p. 3.)

Similarly, as to the third Pennypack factor, Plaintiff has not

requested any additional discovery to address Sunbelt’s late

disclosures, and therefore allowing Sunbelt’s discovery amendments

at this time will not disrupt the trial of this matter. Under

Pennypack, the Court must also determine whether Sunbelt acted in

bad faith or has willfully failed to comply with the Court’s

scheduling order. This is not a situation of an isolated piece of

discovery that was inadvertently omitted from production.

Notwithstanding the deadlines established by the Court for

completion of fact discovery, Sunbelt continued to produce

additional discovery in piecemeal fashion on March 30, 2020, June

10, 2020, and May 12, 2021, without seeking leave of court and

without any appropriate reasons excusing its failure to produce

the discovery in accordance with the scheduling order. The

surveillance evidence, obtained six months prior to its

production, was produced by Sunbelt three days after Plaintiff

produced his medical expert report and less than one week after

the Court denied Sunbelt’s request to obtain other discovery – the

deposition of Jeff Grimm – outside of the discovery period. Sunbelt

then contacted Rob’s Towing to obtain witness names seven months

after the close of discovery, without explanation and in disregard

of the fact discovery end date. Further, in March 2021, while in

the midst of writing letters to the Court and participating in

hearings to explain its failure to produce expert discovery in

accordance with the scheduling order, Sunbelt had Plaintiff placed

under surveillance outside of the discovery period. Sunbelt’s

conduct bespeaks of the strategic late production of information

in contravention of Rule 16(b) and this Court’s scheduling order.

The fourth Pennypack factor therefore heavily supports Plaintiff’s

motions to strike Sunbelt’s belated production of surveillance and

identification of new fact witnesses.

The final Pennypack factor requires the Court to

consider the importance of the evidence to be excluded, which the

Third Circuit has indicated is the most significant factor in

deciding whether preclusion of evidence is appropriate. ZF

Meritor, LLC v. Eaton Corp., 696 F.3d 254, 299 (3d Cir.

2012)(“[P]erhaps the most important factor in this case is the

critical nature of the evidence, and the consequences if permission

to amend is denied.”); see also Pennypack, 559 F.2d at 905 (“the

exclusion of critical evidence is an ‘extreme’ sanction . . . not

normally to be imposed absent a showing of willful deception or

‘flagrant disregard’ of a court order by the proponent of the

evidence”)(quoting Dudley v. South Jersey Metal, Inc., 555 F.2d

96, 99 (3d Cir. 1977)). Here, there has been no showing that any

of the fact discovery at issue is critical. With respect to the

two witnesses identified after the close of fact discovery, Rick

McCarty and Walter Schrenk, Sunbelt does not explain why these

witnesses’ testimony is critical to this case.5 Likewise, Sunbelt

fails to demonstrate that the surveillance material is critical in

5 In the parties’ proposed final pretrial order, Sunbelt indicated

that these witnesses will be offered to testify as to facts and

circumstances relating to the pickup and delivery of the Ranger

from Sunbelt to Live Nation. Plaintiff’s counsel was willing to

consent to an individual from Rob’s Towing testifying for the

purpose of authenticating documents, provided such witness was not

Rick McCarty or Walter Schrenk, but Sunbelt would not agree to

this limitation. (See Letter from Anthony J. Leonard, Esq. [D.I.

363], Jan. 21, 2022, Ex. A.)

this matter. Although surveillance evidence is unique in form,

Sunbelt does not assert that the surveillance demonstrates that

Plaintiff has misrepresented his condition, nor does Sunbelt

otherwise address what impact the admission or preclusion of the

surveillance would have on the merits of the case. While Sunbelt

asserts that it does not otherwise have a mechanism to challenge

Plaintiff’s condition, the Court notes that Sunbelt may cross-

examine Plaintiff concerning his medical condition and has had the

ability to review Plaintiff’s medical records and obtain an expert

report. As such, Sunbelt fails to demonstrate that the surveillance

evidence is critical to Sunbelt’s defense. Thus, the fifth and

most important Pennypack factor does not weigh against striking

Sunbelt’s fact discovery amendments.

On balance, the Court finds that consideration of the

Pennypack factors supports striking Sunbelt’s discovery amendments

dated March 30, 2020, June 10, 2020, and May 12, 2021. Although

there is a lack of prejudice to Plaintiff, striking the discovery

amendments is appropriate here given Sunbelt’s disregard of Rule

16(b) and the Court’s scheduling orders and failure to demonstrate

that such discovery is critical to the claims and defenses in this

case. Consequently, Plaintiff’s motions to strike Sunbelt’s fact

discovery amendments shall be granted.

The Court now turns to Plaintiff’s motion [D.I. 307] to

strike certain information provided by Sunbelt in connection with

Sunbelt’s expert report. On May 20, 2020, Sunbelt produced the

report of its expert, Paul Guthorn, MSME, P.E. (Cert. of Counsel

in Supp. of Def. Sunbelt Rentals, Inc.’s Opp. to Pl.’s Mot. to

Strike, Ex. D [D.I. 315-7].) In several sections of the report,

Guthorn referred to data used to simulate the accident at issue in

this case. For example, Guthorn noted that a scaled, three-

dimensional model of the accident was created using “data and

measurements generated by the Faro 3-D laser scanner on September

30, 2019[,]” along with physical evidence, including photographs

and video frames extracted from police body cameras, tire marks,

and the post-accident position of the Ranger. (Id. at p. 5.)

Guthorn also noted that he performed an additional accident

reconstruction using a computer simulation program called PC-

Crash. (Id. at p. 7.) The report stated that “[v]ehicle parameters

were input, and the vehicle was driven along the arced path.” (Id.)

The report further noted that the “PC-Crash frames illustrate the

movements and comport with the accident scene physical evidence”

and that it was “anticipated that an animation based on the

aforementioned may be generated to assist in explaining the

accident.” (Id. at p. 7, n.3.)

On May 27, 2020, Plaintiff’s counsel reviewed the report

and determined that the report referenced information that had not

been provided with the report. (Pl. Dominic Faiella’s Br. in Supp.

of Mot. to Strike Def., Sunbelt Rentals, Inc.’s Dec. 18, 2020 and

Apr. 8, 2021 Discovery Amendments (hereinafter, “Pl.’s Br.”) [D.I.

307], pp. 2-3.) Plaintiff’s counsel then wrote to counsel for

Sunbelt, noting that the Guthorn report “mention[ed] diagrams,

exhibits, animations, etc.” and requesting that such information

be provided. (Id., Ex. A [D.I. 307-1].) On July 3, 2020, counsel

for Sunbelt provided a supplemental report and animation from Mr.

Guthorn. (Id., Ex. B [D.I. 307-2].) Plaintiff did not thereafter

request any additional information and did not specifically

request the data that Guthorn entered into the PC-Crash program

and used to create the three-dimensional scaled model. (Def.

Sunbelt Rentals, Inc.’s Br. in Supp. of its Opp. to Pl. Dominic

Faiella’s Mot. to Strike Def. Sunbelt Rentals, Inc.’s Dec. 8, 2020

and Apr. 8, 2021 Discovery Amendments (hereinafter, “Def.’s Opp.

Br.”) [D.I. 315], p. 2.) In addition, Plaintiff did not take the

deposition of Guthorn and therefore never inquired about the data

used by Guthorn in creating the accident reconstruction. (Id. at

p. 10.)

On November 13, 2020, Plaintiff filed a motion in limine

which sought exclusion of the Guthorn report on several grounds,

one of which was Sunbelt’s failure to produce the data underlying

the report. Specifically, Plaintiff argued that Guthorn’s accident

reconstruction “relies on a crash simulation program which has not

been produced and which is purportedly based on data that is not

identified in his report.” (Pl., Dominic Faiella’s Mot. in Limine

to Preclude the Accident Reconstruction and Video Animations of

Paul S. Guthorn, MSME, P.E. [D.I. 205-1], p. 3.) Plaintiff asserted

in this regard that the Guthorn report “does not provide any

information about the ‘vehicle parameters’ that were input.” (Id.

at pp. 25-26.) Similarly, Plaintiff asserted that the Guthorn

report did not include the data generated by the Faro 3-D laser

scanner that was used to create a scaled, three-dimensional model

of the accident. (Id. at p. 26.) In December 2020, counsel for

Sunbelt mailed to Plaintiff’s counsel a CD of data, along with a

letter stating “[e]nclosed on CD is Paul Guthorn’s data that you

requested in your recent Motion in Limine.” (Pl.’s Br., Ex. C [D.I.

307-3].)

After filing the motion in limine, Plaintiff raised

Sunbelt’s belated production of the underlying Guthorn data to

this Court. (Letter from Anthony J. Leonard, Esq. [D.I. 233], Jan.

6, 2021.) Specifically, in January 2021, Plaintiff sent a letter

asking this Court for permission to move to strike the belated

production. (Id.) The Court addressed the issue during hearings on

March 9, 2021 and March 25, 2021 and directed Sunbelt to provide

an affidavit from Guthorn concerning the PC-Crash program utilized

in preparation of his expert report. (See Order [D.I. 262], Mar.

29, 2021, p. 1, ¶ 1.) Sunbelt thereafter produced the requisite

affidavit, in which Guthorn stated that all data relied on in the

report was provided to Plaintiff, although he further indicated

that he had previously inadvertently failed to include one data

file that was on his work computer while he was working remotely

due to the pandemic, and he only discovered the omission when

preparing the affidavit. (Aff. of Paul Guthorn, MSME, P.E. [D.I.

264], Apr. 8, 2021, p. 5.) That additional data file was forwarded

to Plaintiff on the same date that Guthorn signed the affidavit,

along with an email from Sunbelt’s counsel which noted that Sunbelt

provided a “PC-Crash project file” because “[i]n responding to the

Court’s questions, Mr. Guthorn discovered that only one of the PC-

Crash project files had been provided.” (Pl.’s Br., Ex. D [D.I.

307-4].) The Court, unable to resolve the issue informally pursuant

to Local Civil Rule 37.1, directed Plaintiff to file a formal

motion. (Transcript of Proceedings [D.I. 310], Apr. 12, 2021, p.

8:18-24.) Both the December 18, 2020 production of data and the

April 8, 2021 production of additional data are now the subject of

Plaintiff’s final motion to strike.

Plaintiff argues that Sunbelt was required under Rule

26(a)(2)(B) to provide “the facts or data considered by the

witness” in forming his opinions and that Sunbelt cannot now

supplement the Guthorn report with the underlying data. (Pl.’s Br.

at pp. 4, 6-7.) Plaintiff argues that the Pennypack factors warrant

exclusion of the December 18, 2020 and April 8, 2021 discovery

amendments, specifically asserting that he has suffered

irreparable prejudice because he decided to forgo expert

depositions based on the report as written and filed dispositive

motions based on the lack of data. (Id. at pp. 6-8.) Plaintiff

contends that Sunbelt should not now be “permitted to use those

motions to learn how to fortify its expert’s report.” (Id. at p.

7.) Plaintiff further argues that Sunbelt has demonstrated bad

faith and willfulness in failing to comply with the orders of this

Court, noting that Guthorn provided an expert report on behalf of

Sunbelt in another case, Roberts v. Sunbelt Rentals, Inc., No. 14-

40, 2016 WL 1259414, at *1 (W.D. Va. Mar. 30, 2016), in the United

States District Court for the Western District of Virginia, and

also failed to produce the underlying data in that case. (Id. at

pp. 7-8.) Plaintiff thus argues that Sunbelt’s failure to produce

the data here is inexcusable. (Id.) Finally, Plaintiff notes that

he is not seeking exclusion of the Guthorn report in its entirety,

as he seeks only to strike the amendments by which Sunbelt provided

the underlying data. (Id. at p. 6.) Sunbelt again asserts that the

failure to produce the underlying data was a mistake of counsel

and was not a strategic decision. (Def.’s Opp. Br. at p. 16.)

Pursuant to Federal Rule of Civil Procedure 26(a)(2), a

witness who is “retained or specially employed to provide expert

testimony” must produce a written report that contains, inter alia,

“a complete statement of all opinions the witness will express and

the basis and reasons for them” as well as “the facts or data

considered by the witness in forming them[.]” FED. R. CIV. P.

26(a)(2)(B). After disclosing an expert report, a party must

“supplement or correct its disclosure or response” if it “learns

that in some material respect the disclosure or response is

incomplete or incorrect . . . [.]” FED. R. CIV. P. 26(e)(1)(A).

While “‘true supplementation’” – i.e., correcting inadvertent

errors or omissions – is required under Rule 26(e), courts have

“‘repeatedly rejected attempts to avert summary judgment by

‘supplementing’ an expert report with a ‘new and improved’ expert

report.’” Hartle v. FirstEnergy Generation Corp., 7 F. Supp. 3d

510, 517 (W.D. Pa. 2014)(quoting 8A Charles Alan Wright, Arthur R.

Miller & Richard L. Marcus, Federal Practice and Procedure § 2049.1

3d ed. 2005). “Rule 26(e) is not a vehicle for experts to

‘continually bolster, strengthen, or improve their reports by

endlessly researching the issues they already opined upon, [and

then] continually supplement their opinions.’” Spencer Spirit

Holdings, Inc. v. Sunrise Roofing, Inc., No. 19-186, 2020 WL

4757075, at *2 (W.D.N.C. Aug. 17, 2020)(quoting In re Bear Stearns

Co., Inc. Sec., Derivative, & ERISA Litig., 263 F. Supp. 3d 446,

451 (S.D.N.Y. 2017)). “Nor is it a ‘vehicle to permit a party to

serve a deficient opening report and then remedy that deficiency

through the expedient of a ‘supplemental’ report.’” Id. (quoting

Bear Stearns, 263 F. Supp. 3d at 451). “If 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). “To determine whether a discovery violation

warrants excluding the associated evidence, courts in the Third

Circuit consider the . . . Pennypack factors[.]” Lee, 2016 WL

4373694, at *4.

The Court finds that Sunbelt was obligated under the

plain language of Rule 26(a) to produce to Plaintiff the data used

by Guthorn in creating his accident models. However, the Court

accepts the representation of Sunbelt’s counsel that the failure

to produce the data was due to an inadvertent omission of counsel

and that the failure was, therefore, substantially justified.

Unlike Sunbelt’s failure to produce surveillance evidence from

2019, which was based on an unspecified mistake of counsel, counsel

for Sunbelt has adequately explained the failure to produce the

Guthorn data. Specifically, counsel for Sunbelt explained that

because Guthorn referenced the basis for his opinions and described

the methodology of his analysis in his report, counsel did not

believe anything additional was required. (Cert. of Counsel in

Supp. of Def. Sunbelt Rentals, Inc.’s Opp. to Pl.’s Mot. to Strike,

Ex. N [D.I. 315-17], at 14:9-24.) Counsel for Sunbelt represents

that when she received a request from Plaintiff’s counsel for

“diagrams, exhibits, animations, etc.,” it did not occur to her

that Plaintiff sought the data that was input by Guthorn into the

PC-Crash program. (Letter from Amy L. Wynkoop, Esq. [D.I. 264],

Apr. 8, 2021.) Indeed, when Sunbelt provided supplemental

information responsive to Plaintiff’s counsel’s request for

additional information, Plaintiff did not thereafter specifically

identify the underlying data that was still missing, nor did

Plaintiff raise the deficiency with the Court. (Id.) The Court,

consequently, cannot conclude that Sunbelt’s counsel intentionally

withheld the Guthorn data.6 Further, Sunbelt’s counsel represented

at oral argument that the data underlying the Guthorn report

existed at the time the report was prepared and was utilized in

the creation of the report, and it therefore does not appear that

Sunbelt created new data to bolster the Guthorn report, nor does

6 In so finding, the Court notes that Sunbelt previously committed

the same error in the Roberts case. In Roberts, the plaintiff

argued that “Guthorn [did] not provide the data that he relied on

to determine the vehicles’ speeds and positions leading up to the

accident” and did not “give the data that he entered into PC-Crash

to create the simulations of the accident.” Roberts, 2016 WL

1259414, at *2. The court in Roberts noted that “Sunbelt[’s] . .

. reasons for failing to timely disclose all of the data that

Guthorn relied on in forming his opinions are weak” but nonetheless

allowed the report because “[t]his is not a case where a party has

sprung a new opinion on another party only days before trial” as

“Guthorn has not changed his opinions since he was disclosed.” Id.

at *3. Clearly, in light of the Roberts decision, Guthorn and

Sunbelt should have known that they were required to produce the

data that Guthorn input into the PC-Crash system. However, Sunbelt

was represented by different counsel in the Roberts case, and there

is no indication that Sunbelt’s counsel in the present case had

any knowledge of the proceedings in Roberts, nor does Roberts

provide a basis for this Court to conclude that the data was

strategically withheld by Sunbelt here.

the subsequently produced data result in a different analysis or

conclusion. Accordingly, the Court finds that Sunbelt did not

engage in gamesmanship by withholding the data at the time it

produced the Guthorn report.7

Having found that Sunbelt was required to supplement its

expert report under Rule 26(e) when it learned through Plaintiff’s

motion in limine that the Guthorn data was missing, the Court next

considers whether the supplemental production was timely. As noted

above, Rule 26(e)(1) requires supplementation of Rule 26(a)

disclosures “in a timely manner.” FED. R. CIV. P. 26(e)(1). Sunbelt

produced the Guthorn report in May 2020, yet it did not disclose

the underlying data until December 2020 and April 2021. While

Sunbelt’s counsel did not realize that production of the data was

required until Plaintiff filed a motion in limine in November 2020,

Sunbelt did not immediately produce the Guthorn data upon receipt

of Plaintiff’s in limine motion. Instead, Sunbelt sent the data to

Plaintiff one month later, in December 2020, after the briefing on

summary judgment motions was complete. Sunbelt provides no

explanation for its one-month delay in providing the underlying

data and, accordingly, the Court is unable to conclude that Sunbelt

supplemented its Rule 26(a) disclosures “in a timely manner.”

7 The Court further accepts the representation in the Guthorn

affidavit that the failure to produce additional program files

until April 8, 2021 was due to a mistake of the expert.

In light of Sunbelt’s failure to comply with Rule 26(a)

and (e), the Court must consider whether exclusion of the data is

warranted as a sanction under Rule 37 and the Pennypack factors.

As noted above, the first two Pennypack factors require the Court

to consider the prejudice or surprise to the party against whom

the evidence would be presented and the ability to cure the

prejudice. The only prejudice asserted by Plaintiff is that he

filed a summary judgment motion and an in limine motion based, in

part, upon the lack of data underlying the Guthorn report, and

Sunbelt purportedly “cannot be permitted to use those motions to

learn how to fortify its expert’s report.” (Pl.’s Br. at p. 7.)

However, the District Judge has ruled on Plaintiff’s summary

judgment motion without consideration of the Guthorn report and

noted that it will address Plaintiff’s arguments concerning

Sunbelt’s experts when addressing the Daubert motions, which are

presently pending before the District Court. (Op. [D.I. 349], Dec.

17, 2021, pp. 26-27.) In addition, although the lack of underlying

data was one basis upon which Plaintiff sought to strike the

Guthorn report in his initial motion in limine, Plaintiff filed a

renewed in limine motion [D.I. 365] and did not assert the lack of

underlying data as a basis to preclude Guthorn’s opinion. The

Court, therefore, does not find that any surprise or prejudice to

Plaintiff is sufficient to support exclusion of the data given

that the data existed at the time Guthorn created his report and

does not change the report or inject a new theory that changed

Guthorn’s opinion in this case. Moreover, assuming there was

prejudice from the belated amendment, this Court provided

Plaintiff an opportunity to obtain additional discovery to cure

any prejudice when this issue was discussed at hearings in March

2021. Indeed, as noted in Roberts, “[w]hat matters, after all, is

that [the plaintiff] has sufficient data that she can rebut

Guthorn’s opinions.” Roberts, 2016 WL 1259414, at *4. Here,

Plaintiff remained steadfast that he required no additional

discovery and rejected the opportunity to take additional

discovery. (See, e.g., Transcript of Proceedings [D.I. 282], Mar.

25, 2021, p. 19:1-7.) The Court, consequently, finds that the first

two Pennypack factors weigh against Plaintiff’s motion to strike

the Guthorn data.8

8 The Court also notes that Plaintiff did not specifically request

the missing underlying data from Sunbelt’s counsel and instead

filed a motion in limine based, in part, on Sunbelt’s failure to

provide the data. Nor did Plaintiff seek to depose the expert,

thereby casting doubt on any claimed prejudice. See Harvey v.

District of Columbia, 949 F. Supp. 874, 877 (D.D.C.)(“Had the

defendants promptly communicated with the plaintiff, they could

have met and conferred about the report and still would have had

time to file a motion to compel production of a supplemental

report. Moreover, the defendants could have noticed [the expert’s]

deposition at any time. Consequently, the defendants’ assertion of

‘significant[] prejudice’ is utterly disingenuous.”),

reconsideration denied by 949 F. Supp. 878 (D.D.C. 1996); see also

Sullivan v. Glock, Inc., 175 F.R.D. 497, 506 (D. Md. 1997)(“If the

most important goal is to avoid surprise at trial or last minute

discovery about expert testimony on the eve of trial, then counsel

should consider filing a motion to compel adequate disclosures or

in the alternative to exclude expert testimony as soon as possible

The third Pennypack factor requires the Court to

consider the extent to which the evidence, if admitted, would

disrupt trial of the case. Because Plaintiff has not requested any

additional discovery, allowing the Guthorn data will not disrupt

the trial of this matter. The third Pennypack factor therefore

also weighs against Plaintiff’s motion to strike the Guthorn data.

In considering the fourth Pennypack factor, whether

Sunbelt has acted in bad faith or in willful disregard of the court

rules and orders, as set forth above the Court accepts the

representation of Sunbelt’s counsel that the failure to produce

the Guthorn data was due to a fundamental misunderstanding by

counsel of what should have been provided with the Guthorn report.

Based on the record before this Court, the Court cannot conclude

that Sunbelt’s counsel acted in bad faith or willfully in

withholding the data. The fourth Pennypack factor therefore does

not support Plaintiff’s motion to strike with respect to the

Guthorn data.

following the discovery cutoff, so that if the court declines to

exclude the expert’s testimony, the opinions of that expert may be

discovered, and a rebuttal expert engaged as far as possible ahead

of trial. Alternatively, if the most important goal of the attorney

is to preclude the expert from testifying at trial by evoking the

automatic exclusion provisions of Rule 37(c)(1), he or she should

remember that this course is not risk free, and that the exclusion

of evidence is a severe sanction which the court may be reluctant

to impose despite Rule 37(c)(1).”).

Finally, the Court considers the importance of the

evidence to be excluded. Plaintiff notes that his motion to strike

does not seek to strike the Guthorn report in its entirety,

although Plaintiff’s initial motion in limine sought to preclude

Guthorn’s accident reconstruction “because the underlying data had

never been produced during discovery.” (Pl.’s Br. at p. 2.) Sunbelt

asserts that striking the underlying data will be “tantamount” to

precluding Guthorn from testifying. (Def.’s Opp. Br. at p. 4.)

Plaintiff’s subsequently filed in limine motion does not seek

exclusion of the Guthorn report based on Sunbelt’s failure to

provide the underlying data.9 It is unclear whether striking

Sunbelt’s December 18, 2020 and April 8, 2021 discovery amendments

may result in the exclusion of the Guthorn report. The Court,

however, notes Sunbelt’s assertion that striking the data, and by

extension the report in its entirety, will be detrimental to

Sunbelt’s defense because Guthorn provided the only accident

reconstruction in this case. (Def.’s Opp. Br. at p. 17.) Thus, at

this time, the Court finds that the fifth Pennypack factor weighs

against striking Sunbelt’s December 18, 2020 and April 8, 2021

discovery amendments to the extent that such amendments are a

foundation to Sunbelt’s only accident reconstruction report.

9 The District Court held a Daubert hearing on March 8, 2022, and

the hearing will continue on April 4, 2022.

In Pennypack, the Third Circuit noted that the exclusion

of critical evidence is “‘not normally to be imposed absent a

showing of willful deception or ‘flagrant disregard’ of a court

order by the proponent of the evidence.” Pennypack, 559 F.2d at

905 (quoting Dudley, 555 F.2d at 99). The Court finds that striking

the Guthorn data is not an appropriate sanction under the

circumstances presented here. Sunbelt did not produce the data to

bolster or change the Guthorn opinion, and the Court has provided

Plaintiff with opportunities to cure any prejudice arising from

the belated production. In addition, the Court does not find in

this case bad faith or willfulness on the part of Sunbelt’s counsel

for the belated production of the Guthorn data and further finds

that striking this data may result in exclusion of an expert

report. Accordingly, the Court finds that the Pennypack factors on

balance weigh against Plaintiff’s motion to strike the December

18, 2020 and April 8, 2021 discovery amendments.

CONSQUENTLY, for the reasons set forth above and for

good cause shown:

IT IS on this 18th day of March 2022,

ORDERED that Plaintiff’s motions [D.I. 305, 308, 309] to

strike Sunbelt’s discovery amendments dated March 30, 2020, June

10, 2020, and May 12, 2021 shall be, and are hereby, GRANTED and

these discovery amendments are hereby STRICKEN; and it is further

ORDERED that Plaintiff’s motion [D.I. 307] to strike

Sunbelt’s December 18, 2020 and April 8, 2021 discovery amendments

shall be, and is hereby, DENIED.

s/ Ann Marie Donio

ANN MARIE DONIO

UNITED STATES MAGISTRATE JUDGE

cc: Hon. Renée Marie Bumb