                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



RALPH JACKSON, et al.,

       Plaintiffs,
               v.                                         Civil Action No. 12-2065 (JEB)
TEAMSTERS LOCAL UNION 922, et al.,

       Defendants.


                          MEMORANDUM OPINION AND ORDER

       Dr. Jerome S. Paige is Plaintiffs’ expert on economic loss. Over a defense objection, the

Court previously permitted him to submit amended reports, even though they constituted his

third and fourth reports on the same topic. On July 8, 2015, after a discussion of this issue at a

status hearing, the Court issued a Minute Order that, inter alia, precluded Paige from issuing any

further reports beyond those four. Plaintiffs now ask the Court to revisit that ruling and to permit

him to yet again supplement his reports. As the information he seeks to add was previously

available and as Paige has already been given several extra bites at the apple, the Court will deny

the Motion.

I.     Background

       Paige originally prepared a 78-page report, which was served on Defendants on January

30, 2015. See Opp. at 1; Corrected Reply (ECF No. 122) at 1. They conducted his deposition on

June 15, but, at the beginning of that proceeding, Paige provided a modified report. See Opp. at

1; Corrected Reply at 2. On that same day, after the conclusion of the deposition, Plaintiffs sent

Defendants two new amended reports, and they also indicated that Paige intended to produce

another report in the future. See Opp. at 2; Corrected Reply at 1 n.1. At a status hearing on July

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8, Defendants objected to these latest amended reports, but the Court, to accommodate Plaintiffs,

permitted Paige to rely on the reports issued June 15. See Minute Order of July 8, 2015. In

fairness to Defendants, the Court let them redepose Paige regarding those amended reports and at

Plaintiffs’ expense. See id. The Court, furthermore, expressly stated, “Plaintiffs’ expert may

issue no further reports [beyond those of June 15].” Id.

       The redeposition occurred on August 5 and concerned the amended report provided at the

original deposition, as well as the two additional reports submitted later that same day. See Opp.

at 2. Plaintiffs have now filed a Motion for Leave to File Supplemental Report – i.e., a fifth

report − from the same expert. See ECF No. 111. Defendants, not surprisingly, oppose.

II.    Analysis

       In seeking leave to yet again supplement Paige’s report, Plaintiffs first argue that Federal

Rule of Civil Procedure 26(e)(1)(A) permits such supplementation, notwithstanding the Court’s

July 8 Order proscribing further reports. They are correct that Rule 26(e) governs

supplementation of discovery disclosures and responses. Rule 26(e)(1)(A) concerns any

disclosures (related to experts or not) under Rule 26(a) and requires a party to “supplement or

correct its disclosure or response . . . in a timely manner if the party learns that in some material

respect the disclosure or response is incomplete or incorrect . . . .” Rule 26(e)(2), conversely,

applies only to experts and states: “For an expert whose report must be disclosed under Rule

26(a)(2)(B), the party’s duty to supplement extends both to information included in the report

and to information given during the expert’s deposition. Any additions or changes to this

information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are

due.” Plaintiffs thus assert that they are doing no more than following the dictates of the rule.

       Defendants rejoin that Paige is not merely supplementing his report, as permitted by the



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Rule, but is instead attempting to improperly bolster such report by correcting the flaws

highlighted in his August 5 deposition. See Opp. at 8. They argue that courts have commonly

restricted supplementation to material not available at the time of the initial report. As the

additions were known by Plaintiffs when issuing the earlier reports, therefore, supplementation

would be improper.

       Defendants have the better of the argument here. As this Court explained in Richardson

v. Korson, 905 F. Supp. 2d 193 (D.D.C. 2012):

               [Rule 26(e)] “permits supplemental reports only for the narrow
               purpose of correcting inaccuracies or adding information that was
               not available at the time of the initial report,” Minebea [Co., Ltd. v.
               Papst], 231 F.R.D. [3,] 6 [(D.D.C. 2005)] (citing Keener v. United
               States, 181 F.R.D. 639, 640 (D. Mont. 1998)), and “‘does not grant
               a license to supplement a previously filed expert report because a
               party wants to.’” Estate of Gaither ex rel. Gaither v. District of
               Columbia, No. 03-1458, 2008 WL 5869876, at *3 (D.D.C. Oct. 23,
               2008) (quoting Keener, 181 F.R.D. at 640); see also SEC v.
               Nacchio, No. 05-480, 2008 WL 4587240, at *3 n.3 (D. Colo. Oct.
               15, 2008) (to “construe supplementation to apply whenever a party
               wants to bolster or submit additional expert opinions would reek
               [sic] havoc in docket control and amount to unlimited expert
               opinion preparation”) (internal citation omitted).

Id. at 199; see also DAG Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 109-10 (D.D.C.

2005) (“Plaintiffs fundamentally misconstrue the idea of ‘supplementation’ under Rule 26.

‘[S]upplementation under the Rules means correcting inaccuracies, or filling the interstices of an

incomplete report based upon information that was not available at the time of the initial

disclosure.’”) (quoting Keener, 181 F.R.D. at 640) (emphasis and alteration in DAG); accord

SD3, LLC v. Rea, 71 F. Supp. 3d 189, 194 (D.D.C. 2014).

       Plaintiffs here do not contend that the supplementation is based on material previously

unavailable to Paige. They concede, in fact, that the August 5 “deposition led plaintiffs to

believe that making certain corrections and adjustments to Dr. Paige’s calculations would result

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in a more accurate and complete report as to Plaintiffs’ damages . . . .” Mot. at 1. Put another

way, Plaintiffs seek supplementation “because during [Dr. Paige’s] deposition testimony he

discovered that some of his calculations were incorrect and/or incomplete.” Id. at 3 (citation

omitted). The factual predicate for such justifications, however, does not fit within the

parameters of what Rule 26(e) authorizes.

       Plaintiffs alternatively maintain that there is no prejudice to Defendants from permitting

the supplementation because the revised damages calculations are less favorable to Plaintiffs

themselves. To help it consider the merits of such a position, the Court instructed Defendants to

file a sur-reply brief to address prejudice. See Minute Order of Nov. 3, 2015. Defendants

complied and pointed out that, while certain damages figures might now be eliminated – e.g., by

the dismissal of Plaintiff Robert Ciccarelli – many relating to the remaining Plaintiffs are higher,

often considerably so, which would redound to Defendants’ detriment. See Sur-Reply at 4-6.

They also note that the proposed supplemental report “raises entirely new theories of recovery

that were previously undisclosed and therefore not addressed during Dr. Paige’s two

depositions.” Id. at 6. It is thus manifest that prejudice would accrue from supplementation.

       The Court is mindful that in other cases, courts such as this one have remedied potential

prejudice by permitting a further deposition of the expert based on the new report. See

Richardson, 905 F. Supp. 2d at 200-01. But that has already happened here. In July, the Court

allowed Plaintiffs to submit a third and fourth expert report of Paige, even though both were

provided after his initial deposition. See Minute Order of July 8, 2015. To alleviate any

prejudice, the Court permitted Defendants to redepose him on those reports. See id. Yet, after

granting this indulgence, the Court expressly proscribed its reoccurrence, noting, “Plaintiffs’

expert may issue no further reports . . . .” Id. The Court believes that this remains the proper



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course and that a fifth bite at the apple is simply not warranted here. See Burns v. Georgetown

Univ. Medical Ctr., 2015 WL 3413477, at *2 (D.D.C. May 28, 2015) (permitting plaintiff to

submit second expert report delivered on day of expert’s deposition and allowing reopening of

deposition, but prohibiting any further report or supplementation as “it would not be fair to allow

Plaintiff a third bite at the apple”).

III.    Conclusion

        For the foregoing reasons, the Court ORDERS that:

        1.      The Motion is DENIED; and

        2.      The parties shall jointly submit a proposed briefing schedule for summary

                judgment by December 14, 2015.

IT IS SO ORDERED.




                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date:   December 7, 2015




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