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Moore v. Johnson

United States District Court, D. Columbia.

September 19, 2014

REGINALD G. MOORE, et al., Plaintiffs,
v.
JEH JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant

For REGINALD G. MOORE, Plaintiff: E. Desmond Hogan, Erica Knievel Songer, LEAD ATTORNEYS, HOGAN LOVELL U.S. LLP, Washington, DC; Jennifer I. Klar, John Peter Relman, Megan Cacace, LEAD ATTORNEYS, RELMAN, DANE & COLFAX, PLLC, Washington, DC.

For JOHN E. TURNER, C. YVETTE SUMMEROUR, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY, Plaintiffs: E. Desmond Hogan, Erica Knievel Songer, LEAD ATTORNEYS, HOGAN LOVELL U.S. LLP, Washington, DC; Jennifer I. Klar, LEAD ATTORNEY, Megan Cacace, RELMAN, DANE & COLFAX, PLLC, Washington, DC.

For ANDREW E. HARRIS, JR., LISA ROBERTSON, Individually and on behalf of all other similarly situated, KENNETH ROOKS, CAMILLA SIMMS, Plaintiffs: Erica Knievel Songer, LEAD ATTORNEY, HOGAN LOVELL U.S. LLP, Washington, DC; Jennifer I. Klar, LEAD ATTORNEY, Megan Cacace RELMAN, DANE & COLFAX, PLLC, Washington, DC.

For MICHAEL CHERTOFF, Secretary of Homeland Security, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, Benton Gregory Peterson, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC; Edith Margeurita Shine, UNITED STATES ATTORNEY'S OFFICE, Washington, DC.

For JANET A. NAPOLITANO, Secretary, U.S. Department of Homeland Security, Defendant: Benton Gregory Peterson, Marina Utgoff Braswell, Peter C. Pfaffenroth, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 127

MEMORANDUM ORDER

DEBORAH. A. ROBINSON, United States Magistrate Judge.

By an order filed on September 4, 2013, the Court (Roberts, C.J.) allowed " limited supplemental expert discovery by an industrial psychologist expert due to the death of Defendant's previous such expert[.]" Order (Document No. 752) at 1.[1]

Page 128

In so ruling, and in providing dates for the completion of discovery with respect to " Defendant's replacement" for the previous expert, the Court determined that " [t]he Court will not permit the parties to conduct any further expert discovery other than that attendant to Defendant's replacement of [the previous expert]." Id. at 1-2.

Defendant served the report of Rick Jacobs, designated by Defendant as the " replacement" witness, on the date prescribed by the Court; however, Plaintiffs submit that the report " both vastly exceeds the scope of the [report of the previous expert] and materially alters its substance." Motion to Strike at 2. More specifically, Plaintiffs submit that Dr. Jacobs " sets forth entirely new opinions that Defendant has never before disclosed in 13 years of litigation[,]" and that to support those opinions, he " relies on dozens of sources that [the previous expert] never cited or otherwise relied on." Id. at 3 (emphasis in original). Maintaining that " [t]he Court should not permit Defendant, acting in violation of this Court's Order, to use the death of its expert as an excuse to back-door new opinions into the record[,]" id. at 4, Plaintiffs ask that the Court strike Dr. Jacobs' report.

Defendant opposes the motion, and characterizes it as " baseless." Defendant's Opposition to Motion to Strike Dr. Rick Jacobs' Expert Report (Document No. 764) (" Defendant's Opposition" ) at 1. Defendant submits that the report of Dr. Jacobs " fully complies with this Court's Order[,]" and that Dr. Jacobs " neither contradicts what is in the report of [the previous expert], nor substantively changes [the previous expert's] conclusions[.]" Id. at 2. Defendant proffers that the " ultimate conclusions" reached by Dr. Jacobs are " identical" to those delineated in the report of Defendant's first expert. Id. at 9.[2]

Plaintiffs, in their reply, dismiss Defendant's argument as a " caricature[,]" and maintain that Defendant -- rather than merely substituting one industrial psychologist for another -- has instead " attempt[ed] . . . to backfill the record with brand-new expert opinions in violation of this Court's Order." Reply in Support of Motion to Strike Dr. Rick Jacobs' Expert Report (Document No. 765) (" Plaintiffs' Reply" ) at 1.

The hearing on the motion conducted by the undersigned spanned nearly three hours on the record, and at least one hour during which counsel conferred off the record. Counsel for Plaintiffs, relying on dozens of citations to the record, identified corresponding instances of (1) opinions stated by Dr. Jacobs which were not stated by the industrial psychologist first offered by Defendant as an expert; (2) opinions stated by Dr. Jacobs articulated in greater detail than those offered by ...


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