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St. Paul Mercury Insurance Co. v. Capitol Sprinkler Inspection

June 1, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Presently before the Court are two discovery-related motions filed by Defendant/Third-Party Plaintiff Capitol Sprinkler Inspection, Inc. (hereinafter "Defendant" or "Capitol Sprinkler"): Defendant's [29] Motion for Leave to Supplement Defendant's Rule 26(a)(2)(B) Disclosures, and Defendant's [39] Motion in Limine or in the Alternative to Extend Time for Expert Discovery. Both Motions are fully briefed. Based on the filings, the history of the case, and the relevant statutes and case law, the Court shall deny Defendant's [29] Motion for Leave to Supplement Defendant's Rule 26(a)(2)(B) Disclosures, and deny in part and require further briefing in part with respect to Defendant's [39] Motion in Limine or in the Alternative to Extend Time for Expert Discovery.


Plaintiff, St. Paul Mercury Insurance Company (hereinafter, "Plaintiff" or "St. Paul Insurance"), filed a Complaint on October 31, 2005 as Subrogee of Gallaudet University against Defendant. Defendant had entered into a contract on or about April 22, 2002, whereby Defendant would perform a semi-annual inspection of the fire suppression system in the Kellogg Conference Center at Gallaudet University. Compl. ¶ 8; Third-Party Compl. ¶ 2. On or about January 25, 2003, a pipe fitting in the dry fire protection sprinkler system in the Conference Center froze, thawed, and ruptured, causing substantial damage. Compl. ¶¶ 7, 11; Def.'s Answer ¶ 11. No Party disputes that on January 9, 2003, Defendant had inspected at least part of the sprinkler system. Compl ¶¶ 9, 10; Third-Party Compl. ¶ 3. Defendant had certified that it had protected the valves in the sprinkler system from freezing. Compl. ¶ 19; Third-Party Def.'s Opp'n, Ex. 2. However, on January 30, 2006, Defendant filed a Third-Party Complaint against Guest Services, Inc. (hereinafter "Third-Party Defendant" or "Guest Services"), alleging that Guest Services (who performs maintenance and management at the Conference Center) "failed to provide Capitol Sprinkler access to all drum drips located on the fifth floor as requested," failed to "reasonably monitor the system and react to alarms and warnings," and failed to stop the flow of water upon notification from the water flow alarm. Third-Party Compl. ¶¶ 11, 12, 13.

On April 5, 2006, an Initial Scheduling Conference was held in this case, after which the Court issued a [18] Scheduling and Procedures Order ordering that the Proponent's Rule 26(a)(2)(B) statement was due by August 15, 2006, the Opponent's Rule 26(a)(2)(B) statement was due by October 15, 2006, and Replies were due by November 6, 2006, with Discovery closing on December 15, 2006. The Court's Scheduling and Procedures Order further indicated that "Scheduled Dates Are Firm," and that "counsel are required, under both Federal Rule of Civil Procedure 26(f) and Local Rule LCvR 7.1(m), to confer in good faith in an effort to resolve any discovery dispute before bringing it to the court's attention. . . . Counsel shall not file a discovery motion without prior consultation with opposing counsel. Counsel are advised that if the court is called upon to resolve such a motion, the losing attorney (not the principal) will be sanctioned pursuant to Fed. R. Civ. P. 37(a)(4)." [18] Order at 3.

On October 16, 2006,*fn1 Defendant filed an [23] Unopposed Motion for Extension of Time to Serve its Rule 26(a)(2)(B) disclosures, which the Court granted via the following Minute Entry Order on October 24, 2006:

MINUTE ENTRY ORDER (paperless) granting [23] Motion for Extension of Time as to Rule 26(a)(2)(B) Disclosures. Accordingly, Capitol Sprinkler shall serve its expert reports on or before November 6, 2006; Opponent's expert reports shall be served on or before November 27, 2006; and replies, if any, shall be filed on or before December 8, 2006. All discovery shall be completed by January 5, 2007. The status hearing shall remain set for January 31, 2007, at 9:00 a.m.

Dkt. Entry (10/24/06). On January 10, 2007, all Parties appeared before Magistrate Judge Alan Kay for a settlement conference.

On January 31, 2007, the Parties appeared before this Court for a status conference, raising the discovery dispute later articulated in Defendant's [29] Motion for Leave to Supplement Defendant's Rule 26(a)(2)(B) Disclosures,*fn2 filed on February 5, 2007, and the related Oppositions (from both Plaintiff and Third-Party Defendant) and Reply. The paper trail attached to the Parties' filings reveals the following chronology of events:

On October 9, 2006, Defendant had noticed the depositions of two former employees of Third-Party Defendant (Terrence Hubbard and David Hamm) and corporate designees for both Gallaudet and Third-Party Defendant for October 16, 2006. Def.'s Reply, Ex. E. Both Plaintiff (on October 11, 2006) and Third-Party Defendant (on October 12, 2006), indicated that they could not produce said witnesses in such a short time-frame. Def.'s Mot., Ex. 1 (D & E). On October 16, 2006, Defendant served its "Rule 26(a)(2)(B) Disclosure of Expert Testimony" on Plaintiff and Third-Party Defendant. Def.'s Mot. ¶ 10, Ex. 3. The entirety of this "Disclosure" is as follows:

1. Liability Expert

James S. Davidson, Jr., P.E. P.O. Box 4010 Greenville, DE 19807

Mr. Davidson will testify to the following:

(1) Gallaudet University ("Gallaudet") and Guest Services, Inc. ("Guest") failed to grant Capital [sic] access to the drum drip in the guest suite during the January 9, 2003 inspection to allow it to drain any water that may have existed in the sprinkler pipe.

(2) Upon the alarm being set off, Gallaudet and Guest failed to re-transmit the alarm to the appropriate fire service.

(3) Because Gallaudet failed to immediately notify the water service of the alarm, inordinate amounts of water was [sic] discharged throughout the building which caused damages well in excess of the foreseeable damages proximately resulting from a system failure of a water discharge.

Mr. Davidson's qualifications, the compensation to be paid for the study and testimony and a listing of any other cases in which he has testified as an expert at trial within the proceeding four years are attached hereto and incorporated by reference herein. A complete statement of all opinions to be expressed and the basis and reasons therefore [sic], a listing of any cases in which he has testified as an expert by deposition within the last four years, the data or other information considered by Mr. Davidson and any exhibits to be used as a summary of or support for the opinion will be forthcoming in a supplementary disclosure. Capital [sic] filed a motion for extension of time to provide this information in a supplementary disclosure.

Def.'s Mot., Ex. 3 (October 16, 2006 Disclosure) (emphasis added). This "Disclosure" was signed by Defendant's counsel, not by Mr. Davidson. Attached to this "Disclosure," Defendant only provided the curriculum vitae of Mr. Davidson, which included his usual rate of $150 per hour for pretrial review of documents, depositions, and trial testimony. Id. On October 24, 2006, this Court issued a Minute Order granting Defendant an extension until November 6, 2006, to serve its "expert reports." However, the referenced "forthcoming . . . supplementary disclosure" was never provided by Defendant prior to the close of discovery.

On October 31, 2006, Defendant served Interrogatories on Third-Party Defendant seeking in part discovery of location and contact information for former employees Mr. Hubbard and Mr. Hamm. Def.'s Reply, Ex. I. On November 9, 2006, Plaintiff's counsel sent a letter to Defendant's counsel confirming that Plaintiff's counsel had not received Defendant's expert disclosures, and stating that "Capitol Sprinkler's purported disclosure of expert testimony under Rule 26(a)(2)(B), which you served on or about October 16, 2006, is wholly inadequate under the provisions of that Rule to constitute any expert disclosure whatsoever." Pl.'s Opp'n, Ex. A at Ex. 4 at 2 (November 9, 2006 letter to Brooks from Groth). On December 8, 2006, Defendant's counsel wrote a letter to Third-Party Defendant's counsel titled a Rule 37 request with respect to Mr. Hubbard and Mr. Hamm. Def.'s Reply, Ex. K (December 8, 2006 letter to Horvath from Segletes). On December 13, 2006, Mr. Hubbard's and Mr. Hamm's addresses and other identifying information were provided by Guest Services' counsel to Defendant's counsel. Id., Ex. L (December 13, 2006 e-mail to Segletes from Walsh). However, Defendant's counsel never noticed the deposition of Mr. Hubbard or Mr. Hamm after its original notice of deposition for October 16, 2006, which it had retracted pursuant to discussions with opposing counsel due in part to inadequate notice. See supra at 4; Def.'s Mot., Ex. 1(E) at 1 ("[W]e have agreed that the depositions will not be going forward on Monday [October 16, 2006].").

On January 5, 2007, the final day of discovery, during the deposition of Plaintiff's expert Kenneth McClaughlan, an exchange between counsel took place with respect to Defendant's October 16, 2006 expert "Designation." Def.'s Mot. ¶ 16, Ex. 5 (Deposition transcript). Counsel for Guest Services stated that he had "not seen a report from any engineering [sic] expressing any opinion. I have seen a subject designation, but never an opinion designation. If you have got an opinion designation, I would love to see it. I have seen subject matter only." Id., Ex. 5, Tr. at 23. Counsel for Defendant responded, "We can look at that at the break, if you would like, if you remind me." Id. According to Guest Services, and not refuted by Defendant,

[a]t the conclusion of the deposition, the undersigned showed Mr. Brooks, counsel for Capitol Sprinkler, a copy of the "Designation". [sic] Mr. Brooks indicated that he did not consider this a Designation, that it was inadequate, and stated that there was some other "document" that was available with the Designation. A request was made for that document on January 8, 2007. See Exhibit 4. No such document or report was produced, and it was not until after the Mediation Conference in this case [on January 10, 2007] that the report was created. Mr. ...

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