United States District Court, E.D. Missouri, Southeastern Division
BADER FARMS, INC. and BILL BADER Plaintiffs,
MONSANTO CO. and BASF CORP., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion to
strike the supplemental expert report of Dr. Guido Schnabel
and supplemental document production of Dr. Phillip Brannen.
February 25, 2019, plaintiffs disclosed written reports from
Drs. Baldwin and Guenthner opining that Plaintiffs' peach
operation was biologically and financially unsustainable
beyond 2018. On March 15, plaintiffs moved to add claims for
2018 damages and to include allegations reflecting these
opinions. This Court granted the motion to amend the
complaint, and the Court also granted defendants' motions
to extend certain discovery deadlines. This Court stated that
the parties would be permitted to supplement expert
disclosures as required and that additional expert
depositions could be taken at the direction of the Special
requested an inspection between June 13 and June 20 to see
the orchard during a relevant time of tree health. Plaintiffs
denied the request for those dates, but eventually the
parties agreed that defendants could inspect the orchard on
May 28 and 29, 2019, and produce supplemental expert reports
based on their experts' findings. BASF Corporation's
expert, Dr. Guido Schnabel, inspected plaintiffs'
orchards on May 28 and 29 and noted that plaintiffs'
orchards were still producing peaches. He also reaffirmed his
opinion that Plaintiffs' orchards suffered from
yield-reducing factors other than alleged dicamba exposure,
such as armillaria root rot, bacterial spot, and weather
stress. Plaintiffs deposed Schnabel on June 25 and suggested
that Dr. Schnabel's May 2019 inspection had been too
early to be relevant. After this deposition, plaintiffs'
expert Dr. Baldwin conducted another inspection of Bader
Farms on July 20, 2019. Based on this inspection, Dr. Baldwin
produced a supplemental report opining that the alleged
dicamba exposure at Bader Farms was causing primary damage
and secondary effects to emerge, stressing and ultimately
killing Bader's trees. Dr. Schnabel conducted a second
inspection of Bader Farms on July 31, 2019. Based on data he
collected during his July inspection, as well as the new
opinions disclosed in Dr. Baldwin's supplemental report
pertaining to his own July inspection, Dr. Schnabel prepared
a second supplemental report. BASF produced the report on
September 10, 2019, six days after the deadline for close of
discovery on September 4, 2019.
September 2019 report, Dr. Schnabel opined that: (1) in July
2019 Bader Farms suffered from drought and weed stress; (2)
bacterial spot disease was defoliating trees and rendering
their fruit unmarketable; (3) Bader's 2019 spray records
revealed insufficient bacterial spot management practices;
(4) armillaria root rot infections had predictably expanded
at a steady pace; and (5) claims that armillaria root rot
affects only peach trees weakened by other stress factors
lack scientific evidence.
meantime, on August 2, 2019 plaintiffs served their Fourth
Set of Requests for Production of Documents to Defendant
Monsanto Company. Monsanto served responses to those requests
on September 3. Included with those responses were the 4, 000
files-photographs, maps, videos, and other materials-that
support the opinions of Dr. Phillip Brannen, and 900 files in
support of the opinions of Dr. Schnabel.
move to strike both Schnabel's report and the production
of the Brannen documents as untimely filed and prejudicial.
They filed their motion on November 4, 2019.
Dr. Schnabel's Supplemental Report
Rule of Civil Procedure 37(c)(1) states, “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 trial, unless the failure was
substantially justified or is harmless.” Courts
routinely use their discretion to allow untimely
supplementation of expert reports under Rule 26 where there
is time to remedy the harm caused by the late submission.
See, e.g., United States v. STABL, Inc.,
800 F.3d 476, 488 -89 (8th Cir. 2015); In re Genetically
Modified Rice Litig., 4:06 MD 1811 CDP, 2009 WL 3336086,
at *1 (E.D. Mo. Oct. 6, 2009).
position is that although “fact discovery” closed
on September 4, they were free to continue expert discovery.
They correctly assert that Federal Rule of Civil Procedure
26(a)(3)(B) and (e)(2) allow expert supplemental reports to
be produced at least 30 days before trial unless the Court
states otherwise. On the other hand, plaintiffs believe the
Court intended for all discovery to close on September 4
because the Order stated “Discovery will close on
September 4, 2019.” [#180 at 3.] They add that the
Order granted defendants' motion to extend discovery
deadlines, and in that motion the defendants asked
for “all discovery” to close on September 4.
event, plaintiffs claim that the late filing of
Schnabel's report was neither substantially justified nor
harmless because they do not have time to depose Schnabel
again before the trial setting next month. Again, this Court
stated (after allowing plaintiffs to extend the expert
witness deadlines in April) that it “will permit the
parties to supplement expert disclosures as required, and
additional expert depositions may be taken as well and at the
direction of the Special Master.” #180. Although there
was a delay from the July 31 inspection date to the September
10 disclosure, it is notable that plaintiffs also delayed
filing their motion to strike until November 4, some eight
weeks after the disclosure. And surely that was a sufficient
window to request that Schnabel submit to a supplemental
the complexity of the case, and the obvious need for an
ongoing review of the damage to the peach trees, this Court
finds that Schnabel's supplemental report was not so
untimely as to warrant its exclusion. However, to offset any
harm to plaintiffs, and because the trial is still more than
five weeks away, and if plaintiffs so request, Dr. Schnabel
will be required to submit to a supplemental deposition as
soon as practicable. And of course, plaintiffs may also
request that the trial be continued.
Dr. Brannen's Documents
timely responded to plaintiffs' August 2 document request
on September 3. Their responses included voluminous documents
from experts. That they were disclosed the day before the
discovery deadline is not controlling, as it was the timing
of plaintiffs' requests that set the disclosure deadline.
Nonetheless, plaintiff argue that the kind of documents
produced on September 3 should have been produced much
earlier-in line with Rule 26(a)(2)(B)'s requirement that
they be disclosed with Brannen's initial report.
Defendants respond that the required documents were
previously identified during ...