Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY–E.D.N.Y.: Employee’s late-filed expert witness reports in Title VII suit are stricken, (Jan 23, 2025)

By Nadine E. Roddy, J.D.

The untimely filed supplemental reports were based on information that was not shown to be “unknown or unavailable” when the initial reports were prepared.

A discharged employee who brought an employment discrimination suit against his former employer was not entitled to file supplemental expert witness reports after the close of a protracted discovery period lasting nearly four years, a federal magistrate judge in New York has ruled. Nothing in the record indicated that the “new” information on which the reports were based was unknown or unavailable to the experts when they prepared their initial reports, and the supplemental reports greatly exceeded the scope of the initial reports (Williams. v. East Meadow Union Free School District, No. 1:21-cv-11062-MJJ (E.D.N.Y. Jan. 16, 2025)).

Late-filed expert reports. The discharged employee, who had served as Assistant to the Superintendent for Administration of a public school district in New York, brought suit against his former employer under Title VII, the ADEA, Sections 1981 and 1983, and the New York State Human Rights Law. He asserted claims of race, color, and age discrimination, hostile work environment, and retaliation.

Four years after filing suit, and as the case was approaching the summary judgment stage, the employee filed supplemental reports of two of his expert witnesses—an economist and a clinical psychologist. Their depositions had been taken within the discovery period set by the judge, but the supplemental reports were not served until after the deadline for completion of all discovery.

Economist’s report. The economist’s initial and supplemental reports were prepared for purposes of calculating lost back- and front-pay for the employee as a result of his allegedly wrongful termination. The supplemental report stated that the economist realized during his deposition that he had made a “big oversight” in failing to deduct as mitigating income the employee’s Social Security benefits. He realized that he had used calculations appropriate to a personal injury case rather than a civil rights/discrimination case.

Psychologist’s report. The psychologist’s initial report stated that the employee suffered from PTSD with co-occurring depression and anxiety, referencing bouts of low confidence and cognitive difficulties such as inability to focus or recall events. However, as stated in her supplemental report, she altered her diagnosis to Complex PTSD (CPTSD) after reviewing prior medical findings of two neurologists who had diagnosed the employee with “mild cognitive impairment” progressing into “unspecified dementia with behavioral disturbance.”

The employer moved to strike the supplemental reports as untimely under Rule 37.

Rule 37(c)(1). The judge noted that the issue for decision was whether “these belated modifications” to the experts’ initial reports were within the scope of their original reports, or whether they expounded new and different theories or approaches that deviated from the prior reports. Courts applying Rule 37(c)(1) have held that, following the conclusion of expert discovery, an expert’s supplemental report may be submitted if it is within the scope of the initial expert report and the information it relies upon was previously unknown or unavailable.

Conversely, courts will not admit late-filed expert evidence when it expounds a wholly new and complex approach designed to fill a significant gap in the first report. In this case, nothing in the record indicated that the employee’s Social Security damages were unknown or unavailable to the economist. Further, having chosen to utilize an incorrect method in calculating the damages, the economist could not file a corrected report utilizing a new method after the close of discovery.

Similarly, although the psychologist averred that she did not know of the prior neurological diagnoses when she prepared her initial report, nothing indicated that the neurologists’ records were unavailable to her at that time. Further, her supplemental report offered several new diagnoses, including CPTSD and dementia, that stretched far beyond the scope of the conclusions set forth in her initial report. Thus, she was not entitled to file the supplemental report after the close of discovery.

Four-factor test. The judge’s conclusion was buttressed by an examination of four factors that many courts apply when considering whether to preclude supplemental expert reports under Rule 37(c)(1): (1) the party’s explanation for the delay; (2) the importance of the precluded evidence or document; (3) the prejudice suffered by the opposing party; and (4) the possibility of a continuance. The judge determined that although the second factor favored the employee, the other three factors favored the employer—especially that of prejudice.

For these reasons, the judge granted the employer’s motion to strike the late-filed supplemental expert reports.

The case is No. 1:21-cv-11062-MJJ.

Judge: Wicks, J.

Attorneys: Albert Darnell Manuel, III (The Law Offices of Frederick K. Brewington) for Arthur Williams. Leo Dorfman (Sokoloff Stern) for East Meadow Union Free School District.

Companies: East Meadow Union Free School District

Cases: EvidenceDiscovery Discrimination Discharge Procedure NewYorkNews