June 23, 2020 Practice Points

It’s All Fun and Games until Someone Loses an Expert

Failure to properly participate in discovery can result in serious sanctions.

By Michael Stefanilo Jr.

In a products-liability action based on an alleged design defect, expert testimony is critical, if not necessary. That makes it all the more important for a party to adhere to all court-ordered discovery deadlines to avoid sanctions that would limit or prohibit the ability to introduce or rely upon an expert opinion. In cases of bad faith, failure to obey discovery orders can even result in sanctions up to and including dismissal of the action. For some parties, these consequences are learned the hard way, as was the case of the plaintiff in Figueroa v. W.M. Barr & Company, Inc., 18-CV-11187, 2020 WL 996473 (S.D.N.Y. Mar. 2, 2020), a products-liability case involving a fire that caused the plaintiff to suffer physical injuries.

After missing multiple deadlines and failing to provide an adequate excuse for doing so, the defendant moved for sanctions, requesting dismissal of the action or, in the alternative, that the plaintiff be precluded from relying on expert reports in opposing summary judgment or at trial. Notably, the plaintiff had failed to produce an expert report to the defendant by a court-ordered deadline. As a result, the court held that the appropriate sanction was to preclude the plaintiff from presenting or relying on any expert reports for purposes of the defendant’s Rule 56 motion, and later at trial. For all intents and purposes, this decision effectively rendered the plaintiff’s defective-design claim untenable, without actually imposing dismissal as a sanction.

The court in Figueroa arrived at its decision after considering the following principles. First, that sanctions serve three fundamental purposes:

(1) preventing a party from profiting from its failure to comply with a discovery order;
(2) securing compliance with an order and deterring future misconduct by it; and
(3) deterring future litigants from non-compliance with discovery rules and orders.

Id. (citing Seena Int’l, Inc. v. One Step Up, Ltd., No. 15CV01095PKCBCM, 2016 WL 2865350, at *12 (S.D.N.Y. May 11, 2016)) (further citations omitted).

Second, where, as in Figueroa, sanctions were sought because a party has “fail[ed] to obey an order to provide or permit discovery,” the motion is ordinarily analyzed under Rule 37(b)(2)(A), which permits the court to “issue further just orders,” Figueroa, supra, including any of the following remedial measures:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A). The sole predicates to the imposition of sanctions under Rule 37(b) are a “court order directing compliance with discovery requests” and “non-compliance with that order.” Figueroa, supra (quoting Shanghai Weiyi Int’l Trade Co. v. Focus 2000 Corp., 2017 WL 2840279, at *9 (S.D.N.Y. June 27, 2017)). Notably, Rule 37(b) applies “notwithstanding a lack of willfulness or bad faith,” although such factors may be “relevant . . . to the sanction to be imposed for the failure.” Id. (citations omitted). The court pointed out that, when a party’s willfulness or bad faith is involved in failure to make discovery, the door to the sanction of dismissal is opened. “Noncompliance with discovery orders is considered willful when the court’s orders have been clear, when the party has understood them, and when the party’s non-compliance is not due to factors beyond the party’s control.” Id. (quoting Davidson v. Dean, 204 F.R.D. 251, 255 (S.D.N.Y. 2001)) (further citations omitted).

While the court ultimately determined that dismissal was one step too far based on the circumstances, by precluding the plaintiff from relying on expert opinion for purposes of her design-defect claim, the result very well might be the same. The lesson here is a simple one: Disobeying a discovery order can cost your client his or her case. When a claim depends on expert testimony, it is wise to strictly adhere to all court-imposed deadlines and orders, particularly surrounding disclosures.

Michael Stefanilo Jr. is a partner with Brody, Hardoon, Perkins & Kesten, LLP in Boston, Massachusetts. 


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