Hunt Construction Group v. Cobb Mechanical Contractors, Inc. et al

Response in Opposition to Motion

W.D. Tex.January 17, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION HUNT CONSTRUCTION GROUP, INC., Plaintiff, vs. COBB MECHANICAL CONTRACTORS, INC. and LIBERTY MUTUAL INSURANCE COMPANY, Defendants. § § § § § § § § § § § C.A. NO. 1:17-CV-00215-LY DEFENDANT COBB MECHANICAL CONTRACTORS INC.’S RESPONSE TO PLAINTIFF’S MOTION TO BAR NON-RETAINED EXPERT TESTIMONY Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 1 of 17 1 Defendant Cobb Mechanical Contractors, Inc. (“Cobb”) files this response to Plaintiff Hunt Construction Group, Inc.’s (“Hunt”) Motion to Bar Opinion Testimony from Cobb’s Non- Retained Experts. [Dkt. No. 154, “Motion to Bar.”] Hunt misrepresents both the law governing the sufficiency of Rule 26(a)(2)(C) disclosures as well as Cobb’s designations themselves (“Designations”). Under the applicable case law, the Designations undeniably provide a “summary of the facts and opinions” that clearly “state the main points” of that testimony and provides enough information to “obviate the danger of unfair surprise” to Hunt. Based on Hunt’s strategy of avoiding the merits of this case, Cobb anticipated Hunt’s Motion to Bar and exceeded the required disclosure for non-retained expert witnesses. In fact, Cobb not only served Designations that provide very specific and detailed descriptions, but also produced to Hunt opinion summaries that included all supporting documents. Still, Hunt complained that the Designations were insufficient (without citing any applicable case law), and filed the instant motion. In response and as a courtesy, Cobb supplemented its Designations (“Amended Designations”) and provided an index of twenty-two key issues and sub-issues with bates ranges and pin cites to the various opinion summaries created by Cobb’s non-retained expert witnesses.1 There has been no prejudice to Hunt. Indeed, all of the depositions of Cobb’s non-retained expert witnesses were scheduled after the Designations were exchanged with Hunt. Nonetheless, a week after the parties exchanged their respective Designations, Hunt informed Cobb that it “do[es] not intend to explore during depositions any opinions of [Cobb’s] non-retained experts that are not expressed in the Disclosure.” Hunt cannot now claim “unfair surprise” because it willfully ignores relevant discovery. Cobb respectfully requests for the Court to deny Hunt’s Motion to Bar. 1 Seven of Cobb’s eight non-retained expert witnesses are primarily fact witnesses and will be testifying from their personal knowledge and observations during the Project. Cobb disclosed them as non-retained expert witnesses out of an abundance of caution due to their experience and knowledge of the topics and of the Project. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 2 of 17 2 I. Legal Authority Does Require Detailed Designations for Non-Retained Experts. Although Rule 26(a)(2)(B) (the “Rule”) requires retained expert witnesses to provide detailed reports, the same stringent requirement is not required for non-retained experts. Rule 26(a)(2)(C)(ii) requires parties to disclose non-retained experts and only provide “a summary of the facts and opinions to which the witness is expected to testify.” The available law and commentary confirm that Cobb met its requirements under the Rule. The Advisory Committee Notes make clear that the disclosure required of non-retained experts “is considerably less extensive than the report required” of retained experts. FED. R. CIV. P. 26(a)(2)(C), Advisory Comm. Note (2010). Indeed, the Notes explain that “[c]ourts must take care against requiring undue detail with regard to Rule 26(a)(2)(C) designations.” Id. (emphasis added); see, Madrid v. Wells Fargo Bank, N.A., 2016 WL 9455141, at *6 (W.D. Tex. June 16, 2016) (Guaderrama, J.) (quoting the Notes for the same proposition); Garcia v. Vasilia, 2018 WL 3756851, at *3 (S.D. Tex. Aug. 8, 2018) (same). In order to provide a summary that satisfies Rule 26(a)(2)(C): The disclosing party should provide a brief account that states the main points of the entirety of the anticipated testimony . . . This does not mean that the disclosures must outline each and every fact to which the non-retained expert will testify or outline the anticipated opinions in great detail. Imposing these types of requirements would make the Rule 26(a)(2)(C) disclosures more onerous than Rule 26(a)(2)(B)’s requirement of a formal expert report. That was certainly not the intent behind the 2010 amendments to the rule. Hayes, 2014 WL 3927277, at *2 (footnotes and quotations omitted) (emphasis added); see also, Marland v. Asplundh Tree Expert Co., 2017 U.S. Dist. LEXIS 15896, at *2 (D. Utah, Feb. 3, 2017) (“Generally, if the party provides a brief account that states the main points and effectively obviate[s] the danger of unfair surprise, the disclosures will meet the 26(a)(2)(C) requirements.” (footnotes and quotations omitted)). Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 3 of 17 3 Consistent with the intention of the Rule, courts have not interpreted Rule 26(a)(2)(C) to require highly detailed disclosures for non-retained expert witnesses. Marland, 2017 U.S. Dist. LEXIS 15896 at *2 (“Courts have found the requirements to be relatively minimal.”); Thompson v. Gammon, 2015 U.S. Dist. LEXIS 185803, at *8 (D.N.M. Feb. 25, 2015) (“perfunctory” summary satisfied the Rule). Nonetheless, “some specificity is required” in a designation of a non-retained expert. Madrid, 2016 WL 9455141, at *6 (quotation omitted); see, e.g., Knighton v. Lawrence, 2016 WL 4250484 (W.D. Tex. Aug. 9, 2016) (Rodriquez, J.) (designation insufficient when defendant provided only a list of 29 names of witnesses, with no summaries at all). The touchstone for whether “a summary of the facts and opinions to which the witness is expected to testify” satisfies the Rules is whether the summary provides sufficient information to “obviate the danger of unfair surprise regarding the factual and opinion testimony of the non- retained expert.” Hayes, 2014 WL 3927277, at *2 (footnotes and quotations omitted); see generally, Knighton, 2016 WL 4250484 at *7 (“The purpose of requiring a ‘summary of the facts and opinions’ is to permit the opposing party to prepare an effective cross-examination.”); cf., Marland, 2017 U.S. Dist. LEXIS 15896, *5-6 (allowing non-retained witness testimony when deposition testimony “put Plaintiffs on notice that [expert] would opine regarding industry standards”); cf. United States ex rel. Austin Materials v. Ins. Co. of Pa., 2016 U.S. Dist. LEXIS 157497, at *5-7 (W.D. Tex. Feb. 24, 2016) (White, J.) (allowing late designation of deposed expert because defendant “still ha[d] time for its [rebuttal] expert to assess [expert’s] deposition testimony and prepare” to respond at trial). Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 4 of 17 4 II. Cobb’s Designations“State the Main Points” of the Expected Testimony, which “Obviate[s] the Danger of Unfair Surprise” to Hunt. Hunt asserts that Cobb’s 12-page Designations somehow “fail[] to disclose any actual opinions that the witnesses propose to offer.” [Motion to Bar at 1.] In addition to being factually incorrect, Hunt’s assertions are not in accordance with the relevant caselaw.2 a. The Designations go Above and Beyond to “State the Main Points.” Hunt quotes pages of bullet points from Cobb’s Designations, (see, id. at 4-6, 7, 8-9, 10), to give the visual impression that Cobb’s Designations consists solely of a list of “mere statement of topics” that its non-retained experts will testify about at trial. [Id. at 3 (quoting Tolan v. Cotton, 2015 WL 5332171, at *6 (S.D. Tex. Sep. 14, 2015).] Cobb’s Designations, (and Amended Designations), however, show that Cobb provides substantial narrative summaries for the opinions of each non-retained expert witness and their factual bases in addition to the bullet point lists. [See, e.g., Exh. 1,3 Cobb’s Designations; see also Exh. 2, Cobb’s Amended Designations.] Cobb does not provide pin cites to every document on which its witnesses will base their opinions, because doing so is not required by Rule 26(a)(2)(C), would be infeasible in a case of this complexity with millions of pages of relevant documents, and would impose a greater burden than providing a retained expert report. See, Hayes, 2014 WL 3927277, at *2. Nonetheless, as discussed below, Cobb went above and beyond what is required in order to provide significant information in this regard to Hunt. For example, taking the disclosure of Mr. Jerry Bitner, Cobb’s Amended Designations state that Mr. Bitner will provide expert opinion testimony, inter alia, on the “timing of bulletins and 2 Moreover, Cobb’s Amended Designations moot Hunt’s complaints as the summaries have been reworded to describe opinions in sentence form rather than opinions by topics. In short, Hunt ignores its own familiarity with this case to feign ignorance that Cobb only offers statements and not opinions. 3 References herein to “Exh. __” are to the documents attached to the Declaration of Rene Trevino. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 5 of 17 5 the fact that these bulletins, i.e. owner changes, caused significant delays to Cobb’s ability to perform its work on the project, which is described in 13 power points and schedule graphics at COBB-FAIR00952691 to COBB-FAIR00952822.” [Exh. 2 at 3, Amended Designations.] As Hunt is aware, Hunt issued numerous bulletins during the Project spanning several hundred pages, with each bulletin having multiple impacts across multiple floors of the Project. Cobb sent individual responses to each of these bulletins with narratives that also spanned several hundred pages. It is infeasible (and not helpful) for Cobb to list every single fact relevant to the testimony Mr. Bitner will offer testimony about bulletins and their impact on delays in the Project. Due to the volumes of documents covering this topic, Mr. Bitner created an “summary” document entitled “Bulletin Impact Narrative,” which consists of 3-pages of Mr. Bitner’s analysis regarding how the bulletins impacted the delays on the Project. [Exh. 4, 0654 Bulletin Impact Narrative.] Hunt is attempting to suppress Mr. Bitner’s testimony and his three-page summary analysis by focusing on the “bullet points” listed in the Designations. Mr. Bitner is not a retained expert witness, but provided this summary in a transparent attempt to inform Hunt of his expected testimony. Not surprisingly, Hunt’s Motion to Bar failed to address Mr. Bitner’s “summary” documents. Additionally, again borrowing from Mr. Bitner’s disclosure as an example, Mr. Bitner will testify that “Hunt’s native scheduling files . . . had significant problems and deficiencies, etc. The types of various deficiencies and problems with those schedules (the details of which can be found throughout the scheduling software analysis print out that have been produced herein at COBB- FAIR00952823 to COBB-FAIR00952903.” [Id. at 3.] Once again, in an attempt at complete transparency, Mr. Bitner provided a “summary” that discloses his expected testimony to demonstrate what Cobb would have objected to and requested corrections if it had access to Hunt’s native schedule files. [Exh. 3, Cobb Activities Review Concern and Found Problems with Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 6 of 17 6 Scheduling Logic.] This summary is 16-pages long and includes images from the software Mr. Bitner utilized to inform his opinion. Again, Hunt would rather ignore this detailed “summary” and instead would have this Court focus on just the bullet points referenced in the Designations. Mr. Bitner’s disclosure also states that he will testify regarding Hunt’s failure to “comply with the Resource loading requirements of the specifications 01 32 00-2.2C (this is discussed in various depositions, including Messrs. McPharlin, Dusing, and Petrossian).” [Id.] In fact, Mr. Bitner was deposed as a corporate representative regarding this topic. As can clearly be seen with these few examples, Cobb’s Amended Designations do more than what is required by the Rule for all eight non-retained expert witnesses. See Marland, 2017 U.S. Dist. LEXIS 15896 at *2. These three examples are just snippets of Mr. Bitner’s disclosure, which spans several pages of summary of facts and opinions to which he may testify to at trial. Unfortunately, due to the page limitations of this responsive brief, Cobb will refrain from belaboring the point for every topic for each non- retained expert witness. Cobb, however, attaches its Designations and Amended Designations as exhibits for the Court’s full consideration. [See Exhs. 1 and 2.] b. Cobb has Exceeded the Requirements of 26(a)(2)(c) Cobb’s Amended Designations more than satisfy the “relatively minimal” requirements of Rule 26(a)(2)(c). Marland, 2017 U.S. Dist. LEXIS 15896 at *2. Indeed, Cobb has exceeded these bare requirements by providing written summaries, producing and organizing the documents upon which its non-retained experts will rely, and, (as Hunt acknowledges), even drafting PowerPoint slides to help Hunt’s experts understand the opinions that Cobb’s employees, i.e. its non-retained experts, will offer at trial. [See, Motion to Bar at 12 (complaining that the PowerPoint slides Cobb “created for the purposes of this litigation” are difficult to read).] Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 7 of 17 7 On December 10, 2018, Cobb produced documents that its non-retained experts will rely on in their testimony. Although Hunt derisively refers to this production as a “dump of 67,645 pages of documents,” nothing can be further from the truth. [Motion to Bar at 10.] In anticipation of Hunt’s argument that Cobb’s Designations are not detailed enough, Cobb produced 3,157 documents, (comprising 67,645 pages), that Cobb and its non-retained experts will rely on to support their testimony at trial. Indeed, mindful of the complexity of this case involving a construction project that cost hundreds of millions of dollars and spanned several years, Cobb also compiled an index of twenty-two key issues and sub-issues that provides bates ranges for the related documents and pin cites to several overview charts prepared for Hunt’s convenience.4 As previously discussed, Cobb provided Hunt with reports that analyzed, complete with screen shots, many of the relevant documents that will support the witnesses’ testimony. [See, e.g., Exh. 3, Cobb Activities Review Concerns and Found Problems with Scheduling Logic at 5; Exh. 4, 0654 Bulletin Impact Narrative; see generally Exh. 5, Email Correspondence 12/27/18, at 2:59 pm (identifying reports by Bates number).] Contrary to Hunt’s protestations that Cobb has somehow not met the Rule’s requirements, Cobb in fact has done far more than simply “state a summary of the facts and opinions to which the witness is expected to testify,” the minimum required by the Rule.5 c. Hunt is Not Prejudiced or “Unfairly Surprised” by Cobb’s Designations. A critical issue for this Court’s consideration is whether Hunt will be prejudiced or “unfairly surprised” by the Amended Designations. The answer is no. To the contrary, the 4 On January 16, 2019, Cobb provided Hunt with an index, by topic, and sorted by bates range for Hunt’s convenience. Exh. 6, Letter to S. Tomashefsky from R. Trevino, dated Jan. 16, 019. 5 Additionally, on January 16, 2019, Cobb provided Hunt with a master spreadsheet (authored by Mr. Bitner) organizing his analyses about Hunt’s native schedules and their impact on delays to the Project. The master spreadsheet is extraordinarily detailed due to Hunt having created over 150 native schedules during the Project, so Cobb provided Hunt with a hyperlinked version to each opinion report and supporting documents. Id. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 8 of 17 8 Amended Designations “obviate the danger of unfair surprise,” as there is no risk that Hunt will be “surprised” as to the substance of Cobb’s witnesses’ testimony, including (for example) Mr. Bitner’s testimony regarding bulletins, schedules, manpower, or delays. Even if Hunt argues that it does not know what Mr. Bitner (or the other witnesses) is referencing, which it should, Hunt can fully vet Mr. Bitner’s (and all of Cobb’s non-retained expert witnesses’) narrative and/or analyses at a deposition, all of which were previously requested by Hunt, have been scheduled, and had yet to occur prior to the parties exchanging designations of non-retained expert witnesses. Hunt is willfully ignoring Cobb’s Amended Designations. Any prejudice or “unfair surprise” is of its own making and lays at the feet of Hunt itself. [See Exh. 7 at 1, Hunt stating that it will not question Cobb’s non-retained expert witnesses about the opinions disclosed in the Designations.] On January 10, 2019, several weeks after the parties exchanged Designations, Hunt deposed Mr. Greg Even—one of Cobb’s non-retained expert witnesses. Even though Hunt informed Cobb that it would not cover any expert opinions at his deposition, Hunt questioned Mr. Even extensively on several of the topics disclosed for Mr. Even in Cobb’s Designations. [See, e.g., Exh. 8, G. Even Rough Depo. Tr. at 82-96, (questioning Mr. Even about the manpower that Cobb provided on the Project and whether such manpower was sufficient given the circumstances of the Project); id. at 49-55, 60-79, 193-194, 216-217 (questioning Mr. Even about schedule review and lack of Native XER files given to Cobb from which to properly analyze Hunt’s CPM Schedule); id. at 188-211 (questioning Mr. Even about the issuance of Fragnet Schedules (Mechanical and Plumbing activities) to Hunt for incorporation into the Hunt Schedule which Hunt ignored).] Hunt cannot credibly argue that it would be “unfairly surprised” by Mr. Even’s testimony regarding these topics as it examined Mr. Even extensively on these very topics. The same is true for the other non-retained experts, who are currently waiting to be deposed by Hunt. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 9 of 17 9 Furthermore, trial in this case is several months away and Hunt has yet to depose seven of the eight non-retained expert witnesses Cobb has designated.6 Therefore, Hunt cannot claim to have suffered any prejudice with respect to any of these witnesses. Marland, 2017 U.S. Dist. LEXIS 15896, *5-6; see generally, United States ex rel. Austin Materials v. Ins. Co. of Pa., 2016 U.S. Dist. LEXIS 157497, at *5-7 (W.D. Tex. 2016) (White, J.). This further demonstrates Hunt’s lack of prejudice or “unfair surprise” about the expected testimony of Cobb’s non-retained expert witnesses. To the extent that Hunt affirmatively chooses to not question these witnesses regarding their disclosed opinions (especially considering these depositions were already scheduled), then any resulting “harm” will have been self-inflicted by Hunt, and does not support its motion to exclude. III. Hunt Mischaracterizes the Case law Hunt cites three primary cases to suggest that Rule 26(a)(2)(c) imposes onerous disclosure requirements on non-retained expert witnesses. These authorities do not support Hunt’s Motion to Bar. In fact, Hunt mischaracterizes two of these cases so severely as to warrant explanation. The third case simply offers no support for Hunt’s position. First, Hunt indicates that “the Court’s holding in the Tolan case” establishes law about the sufficiency of Rule 26(a)(2)(c) disclosures for non-retained experts. [Motion to Bar at 10.] Tolan’s finding, however, related to retained experts, whose testimony the court excluded for failure to provide expert reports. Tolan, 2015 WL 5332171, at *19-20. That is not the issue before this Court. Hunt’s failure to address this critical distinguishing fact (and legal standard) before the Court is quite telling. In Tolan, although none of the witnesses were “retained” experts in the sense that they were “monetarily compensated for [their] testimony,” the court concluded that they 6 The depositions of Cobb’s remaining non-retained expert witnesses are scheduled to take place the last two weeks of January 2019. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 10 of 17 10 were “specially employed” to give expert testimony and so fell within the auspices of Rule 26(a)(2)(B). Id. Therefore, “the [c]ourt conclude[d] that these [witnesses] were required, but failed, to provide expert reports,” and so barred them from testifying. Id. at *19-20. Unlike the witnesses in Tolan, who were required to submit expert reports under Rule 26(a)(2)(B), Hunt concedes that Cobb’s witnesses are non-retained expert witnesses. [Motion to Bar at 3.] These witnesses, who are testifying primarily based upon their work on the Project, are non-retained and thus are specifically not required to submit expert reports under Rule 26(a)(2)(C). Contrary to Hunt’s assertion, “the Court’s holding in the Tolan case” is irrelevant to its motion. [Id. at 10.] Hunt misrepresents Tolan in yet another way by suggesting that Tolan established some unspecified rule that producing large numbers of supporting documents in addition to individualized summaries of facts and opinions somehow reduces the value of those summaries. [See id. at 10 (“in violation of the Court’s holding in the Tolan case, Cobb has merely referred to a dump of 67,645 pages of documents as providing the detail require by the Rule, leaving it to Hunt to find the answers Cobb was required to supply.”).] In Tolan, however, the issue was that the retained expert witnesses produced no reports, no summaries, and no documents. Therefore, it is entirely unclear what “holding in the Tolan case” Hunt could possibly be referring to, as the instant motion relates to non-retained expert witnesses. Moreover, Cobb has produced detailed summaries of opinions and facts with supporting documents, an index to the documents sorted by issue and sub-issue, and a master spreadsheet with hyperlinks to supporting documents to avoid this very dispute. Hunt similarly misrepresents the facts and finding of Knighton v. Lawrence, 2016 WL 4250484 (W.D. Tex. Aug. 9, 2016) (Rodriquez, J.). [See Motion to Bar at 6-7.] In Knighton, the defendant’s entire “designation” was a list of the names of 29 “non-retained experts/medical Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 11 of 17 11 service providers” along with the statement: “The substance of the medical providers’ testimony may be found in the medical records . . . previously produced . . .” Knighton, 2016 WL 4250484 at *3. The issue in Knighton was not whether the defendant’s summaries were sufficient to satisfy Rule 26(a)(2)(C), but whether a party could satisfy the Rule’s requirements by providing 2,500 pages of unannotated medical records with no summaries whatsoever. See id. at *7. That is not the issue before this Court. Cobb has provided summaries plus it has provided well-organized and indexed documentation that makes it clear what the various groupings of documents speak to. Interestingly, the Knighton court noted, in dicta, that it “might find the disclosure sufficient” even without any summaries, if defendant had “designated only a few witnesses and/or accompanying medical records.” Id. at *6 (emphasis added). However, because the defendant “list[ed] twenty-nine medical service providers and reference[d] over 2500 pages of accompanying medical records from which their expert opinions must be divined,” with no summaries whatsoever, the court was not willing to grant such leniency. Id. Clearly, as discussed above, the facts of this case are very distinguishable from Knighton, and do not support Hunt’s arguments. Cobb provided detailed summaries. And, the documents have been organized, produced, and described in a way that Hunt can easily discern to what opinions and issues the various groups of documents relate. Finally, the only case Hunt does not misrepresent, Madrid, is equally unavailing and unhelpful to its arguments. [See, Motion to Bar at 3 (citing Madrid, 2016 WL 9455141, at *6).] On the same page as the language Hunt quotes, the Madrid court emphasized that it “is mindful that it ‘must take care against requiring undue detail’” in Rule 26(a)(2)(C) disclosures and so concluded that the summaries in question were sufficient under Rule 26(a)(2)(C). Madrid, 2016 Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 12 of 17 12 WL 9455141, at *6 (quoting the Advisory Committee’s notes). As shown above, Cobb has met its obligations and provides more than sufficient information to Hunt. IV. Baring Testimony is an Extreme Remedy and Not Favored by Courts As demonstrated above, Cobb’s designations more than satisfy the “relatively minimal” requirements of Rule 26(a)(2)(C). Marland, 2017 U.S. Dist. LEXIS 15896 at *2. Nonetheless, even if Cobb’s designations were somehow deficient, which they are not, the proper remedy would be to allow Cobb to further supplement its designations, rather than to bar the testimony of its non- retained expert witnesses on the key issues in dispute. “Exclusion of expert testimony based on a party's failure to properly and timely designate experts is . . . an extreme measure to be avoided where possible.” Seymour v. Consol. Freightways, 187 F.R.D. 541, 542 (S.D. Miss. 1999); see Hayes, 2014 WL 3927277, at *10-11. “When a party seeks this extraordinary sanction, . . . court[s are] obliged to consider the effect of the conduct for which that sanction is sought has had on the court's docket, whether it has prejudiced that party's opponent, and whether deterrence is necessary to protect the integrity of the judicial system.” Seymour, 187 F.R.D. at 542. In this case, Cobb and Hunt exchanged non-retained expert designations on the agreed upon deadline, and caused no delay in this Court’s docket. Cobb’s Designations, (consisting of 12 single-spaced pages of individual summaries of facts and opinions), Cobb’s Amended Designation, separate production of 3,157 supporting documents with an index sorted by issue, hyperlinked spreadsheets, and overview reports clearly represent a good faith effort by Cobb to comply with the minimal requirements of Rule 26(a)(2)(C). Indeed, in spite of Hunt’s spirited rhetoric, Hunt does not even allege that Cobb acted in bad faith to avoid providing a proper designation. Therefore, there is clearly no need to “deter[ Cobb] to protect the integrity of the judicial system.” Seymour, 187 F.R.D. at 542. Finally, Hunt does not even claim to have Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 13 of 17 13 experienced any prejudice as a result of Cobb’s allegedly deficient designations. Hunt did not allege any prejudice because there clearly has been none. Because Hunt has not been prejudiced and trial is several months away, the proper remedy for any deficiencies this Court may find with Cobb’s Amended Designations would be to order Cobb to correct those deficiencies, rather than to bar Cobb’s non-retained experts from testifying about the central issues in this case. Cf. Madrid v. Wells Fargo Bank, N.A., 2016 WL 9455141, at *6 (W.D. Tex. June 16, 2016) (Guaderrama, J.). Finally, Hunt asserts, without authority, that this Court’s October 25, 2018 Order barred Cobb’s non-retained experts from testifying about or discussing any of the documents Cobb disclosed in Cobb’s December 10, 2018 supplementary interrogatory answers. [See Motion to Bar at 13 (“The documents to which Cobb’s [December 10, 2018] supplementary answers refer do not interpret themselves. If testimony is required to interpret them . . . then that testimony must be barred.”).] Such an assertion, however, is simply nonsensical. Clearly this Court did not intend to require Cobb to make its case based purely on its responses to interrogatories made several months before trial, before the end of fact discovery and the majority of fact depositions were taken, without allowing Cobb’s retained and non-retained experts to testify about those documents. Only slightly less confusing is Hunt’s argument, again without authority, that Cobb’s non- retained experts should be categorically barred from testifying as to any information Cobb did not provide in Cobb’s supplemental answers to Hunt’s interrogatories. [See Motion to Bar at 13 (“testimony must be barred [with respect to] all the other information the supplemental answers fail to provide.”)] As explained above, Hunt spends the bulk of its Motion to Bar pretending, incorrectly, that the only disclosure Cobb made with respect to the testimony of its non-retained expert witnesses was the 3,157 documents it produced on December 10, 2018, as part of Cobb’s Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 14 of 17 14 supplementary interrogatory answers. The final section of Hunt’s Motion to Bar, however, seems to suggest that Cobb’s December 10, 2018 disclosures somehow do not count, so that Cobb’s witnesses should be barred from testifying even as to the information Cobb did provide. [See generally, Motion to Bar at 11 (“it is apparent that Cobb seeks to . . . hav[e its non-retained experts] provide the details missing from its interrogatory answers” of December 10, 2018).] It appears that Hunt is attempting to argue, for the first time, that Cobb’s December 10, 2018 supplemental answers to Hunt’s interrogatories are somehow deficient, and that Cobb’s non- retained experts should not be allowed to testify to anything beyond what Cobb has already disclosed. Rather than identify exactly what Hunt believes Cobb’s witnesses should be barred from testifying to, Hunt asserts in broad strokes that this Court should prohibit “Cobb[‘s] non- retained experts [from] interpret[ing] and explain[ing] what Cobb should have interpreted and explained in its supplementary interrogatory answers.” [Motion to Bar at 12 (emphasis added).] Importantly, Hunt does not specify what “information [Hunt believes] the supplemental answers fail to provide,” and it is impossible for Cobb to understand what testimony Hunt seeks to bar. [Motion to Bar at 13.] In any event, Cobb believes its supplemental interrogatory answers are sufficient and fully satisfied Cobb’s obligations under this Court’s Order. Cobb hesitates to provide any further response in this regard given that Hunt has not provided any specific assertions, and given that prior to its motion to exclude the non-retained experts, Hunt had not raised any objection to Cobb’s supplemental interrogatory responses in the nearly four weeks since such answers were submitted. V. Conclusion Based on the above, Cobb respectfully requests for the Court to deny Hunt’s Motion to Bar. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 15 of 17 15 Dated: January 17, 2019 Respectfully submitted, GREENBERG TRAURIG LLP /s/ Michael L. Burnett Michael L. Burnett Greenberg Traurig, LLP State Bar No. 03428700 Rene Trevino State Bar No. 24051447 1000 Louisiana Street, Suite 1700 Houston, TX 77002 Telephone: (713) 374-3580 Facsimile: (713) 374-3505 burnettm@gtlaw.com trevinor@gtlaw.com Joseph P. Griffith Greenberg Traurig, LLP State Bar No. 24045982 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Telephone: (214) 665-3666 Facsimile: (214) 665-5966 griffithj@gtlaw.com ATTORNEYS FOR DEFENDANT COBB MECHANICAL CONTRACTORS, INC. Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 16 of 17 16 CERTIFICATE OF SERVICE I hereby certify that this Responsive Brief was electronically filed with the Court and that counsel of record, who are deemed to have consented to electronic service in the above-referenced case, are being served this 17th day of January 2019, with a copy of the above-document via the Court’s CM/ECF System. /s/ Gail Jamrok Gail Jamrok Case 1:17-cv-00215-LY Document 163 Filed 01/17/19 Page 17 of 17