United States Magistrate Judge John V. Acosta recently heard a motion in a sexual harassment action by Defendants to strike the report of Plaintiffs’ rebuttal expert. Defendant argued that the report was an initial sexual harassment expert report that supported Plaintiffs’ case-in-chief. Plaintiffs asserted that the report was a proper rebuttal report that responds to the reports of Defendants’ experts.
Judge Acosta made note of the contents of Plaintiff’s expert’s report. The rebuttal report devoted 50 of its 60 pages to describe information and offer impressions that didn’t rebut Defendants’ experts’ reports. Rather, it supported the foundation for Plaintiff’s emotional injury claims. Plaintiff’s expert’s report focused on Defendant’s responsibility for causing Plaintiff’s injury and condition. The sexual harassment expert discussed at length or referred to Defendant throughout his report, and devoted extensive space to Defendant’s conduct before, during, and after the incident, and to its effect on Plaintiff.
The judge explained that the information documented in the first 50 pages of Plaintiff’s expert’s rebuttal report had always been available to Plaintiffs to support their case-in-chief. The expert’s “chronicle of every aspect and event of Plaintiff’s personal and professional life presents information that could have obtained long before [the …] initial expert disclosures deadline…” if Plaintiffs had arranged to have an examination to confirm her allegations of emotional harm and its cause.
Each of the five standard diagnostic tests Plaintiff’s sexual harassment expert administered to Plaintiff and discussed in his report could have been administered well before the deadline. Under the heading “Summary of information reviewed in this rebuttal evaluation,” Plaintiff’s expert states “to a reasonable degree of psychological probability” numerous bullet-point conclusions that merely recast long-available information about Plaintiff’s personal, family, social, and relationship histories, and the events leading up to, during, and following the incident.
Judge Acosta held that 80% of Plaintiff’s expert’s rebuttal report was not a rebuttal at all but a thorough treatment of Plaintiff’s damages case-in-chief.
Plaintiff’s expert examined Plaintiff in-depth and described causal connections between Defendant’s conduct and the emotional injuries Plaintiff alleged, connections Plaintiff consistently attributed to Defendant before and after she filed her lawsuit. Plaintiff’s expert supported his conclusions with evidence gained from the information available from Plaintiff, her family members, Plaintiff’s treatment records, and his own diagnostic tests—all of which either existed or were available prior to the deadline for initial expert disclosures.
Viewed objectively, the judge held that the first 50 pages of Plaintiff’s expert’s rebuttal report was in reality an initial expert report which Plaintiff should have submitted before the deadline for that type of expert report.
The expert’s report was an initial report, not a rebuttal report. As such, the report was stricken and Plaintiff was precluded from using it or any of the expert’s testimony for any purpose in the case, including trial.
Grove City Veterinary Service, LLC, v. Charter Practices, International LLC, 3:13-cv-2276-AC, 2016 U.S. Dist. LEXIS 52646 (D.Ore. April 19, 2016).