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The Atlanta Channel, Inc. v. Soloman

United States District Court, District of Columbia

September 13, 2019

HENRY A. SOLOMON, et al., Defendants.


          RUDOLPH CONTRERAS United States District Judge.


         This legal malpractice case again comes before this Court on two motions to strike respectively filed by defendant Henry A. Solomon and defendants Garvey Schubert Barer and Melodie Virtue (“the Garvey Defendants”). In support of its legal malpractice case against Defendants, Plaintiff The Atlanta Channel, Inc. (“ACI”) designated two expert witnesses specialized in the field of legal ethics, George W. Conk and Tom W. Davidson. Solomon has now moved to strike Davidson's expert report and to exclude his testimony, arguing that Davidson was untimely disclosed as an expert witness. And the Garvey Defendants have moved to strike Conk on a number of grounds, including that his proposed testimony is improper because it entirely consists of inadmissible legal conclusions. After reviewing the parties' arguments, the Court grants in part and denies in part both motions.


         This case has a lengthy history and this Court has already summarized its factual background on several occasions in past opinions. See, e.g., Beach TV Props., Inc. v. Solomon (“Beach TV II”), 324 F.Supp.3d 115, 118 (D.D.C. 2018); Beach TV Props., Inc. v. Solomon (“Beach TV I”), No. 15-1823 (RC), 2016 WL 6068806, at *1-4 (D.D.C. Oct. 14, 2016). The Court assumes familiarity with those prior opinions and briefly outlines only the facts most relevant to the pending motions to strike.

         On December 29, 1999, Solomon submitted a statement of eligibility for a Class A license to the Federal Communications Commission (“FCC”) on behalf of his then-client, ACI. See Beach TV II, 324 F.Supp.3d at 118. The form was improperly filled, and ACI alleges that it was dismissed by the FCC as a result. See Id. ACI alleges that it was thereby unable to obtain a Class A license for a television station it owned, at a loss of at least $25, 000, 000. See Id. Solomon applied for review of the dismissal before the FCC in 2000. See Id. at 119. The same year, he also joined the firm of Garvey Schubert Barer. See Id. Solomon retired from Garvey Schubert Barer in 2010, while the application for review was still pending, and his work with ACI was taken over by Virtue, another attorney at Garvey Schubert Barer. See Id. Virtue began working specifically on ACI's pending application for review in early 2012. See Id. The FCC ultimately denied the application for review on November 9, 2012, and the D.C. Circuit upheld that denial in September 2015. See id.

         ACI filed suit on October 26, 2015. See Compl., ECF No. 1. ACI's first amended complaint, filed on February 2, 2016, included claims for legal malpractice against, inter alia, both Solomon and Garvey Schubert Barer. See First Am. Compl. ¶¶ 122-37, ECF No. 21. But on October 14, 2016, this Court dismissed all but one of those claims, leaving only one remaining live claim against Solomon. See Beach TV I, 2016 WL 6068806, at *1. ACI proceeded to discovery on that claim, with the Court entering a Scheduling Order on October 31, 2016 setting, inter alia, a deadline for the submission of ACI's expert disclosures and reports relating to Solomon's liability on February 28, 2017. See Scheduling Order (Oct. 31, 2016), ECF No. 58. ACI disclosed Conk as a liability expert within that deadline, see Def. Henry A. Solomon's Mem. Supp. Mot. Strike (“Solomon's Mem. Supp.”) 2, ECF No. 110-1, and ACI and Solomon completed discovery as to liability by early 2018, see Joint Status Report 2, ECF No. 85 (“Plaintiff ACI and Defendant Solomon have completed discovery regarding liability issues as to each other.”). The Court then set a deadline for ACI's submission of its expert reports on damages due January 31, 2019. See Scheduling Order (Oct. 4, 2018), ECF No. 101.

         In the meantime, ACI filed a second amended complaint including new claims against Virtue and Garvey Schubert Barer on June 1, 2017. See Second Am. Compl., ECF No. 69. In the second amended complaint, ACI alleges that Virtue committed malpractice by failing to make a number of disclosures to it upon taking over the FCC license matter in 2012 (the so-called “Virtue obligations”). See Id. ¶¶ 59-60, 80-84. And ACI alleges that Garvey Schubert Barer is liable for her malpractice as her employer. See Id. ¶ 87. ACI's claims against the Garvey Defendants proceeded to discovery on a delayed schedule from its claim against Solomon, with the Court setting a deadline for the submission of ACI's expert reports regarding the Garvey Defendants' liability on January 31, 2019. See Scheduling Order (Oct. 4, 2018).

         On September 18, 2018, ACI informed the Garvey Defendants that it intended to use Conk as a liability expert not just on its claim against Solomon, but also on its claims against them. See Pl.'s Mem. Opp'n Garvey Defs.' Mot. Strike (“Pl.'s Garvey Defs. Opp'n”) 1, EFC No. 125. And on January 17, 2019, ACI disclosed a new expert to Solomon, Tom W. Davidson. See Solomon's Mem. Supp. 1-2. Solomon has now moved to strike Davidson as an untimely disclosed liability expert, see Def. Henry A. Solomon's Mot. Strike, ECF No. 110, while the Garvey Defendants move to strike Conk on a number of grounds, see Garvey Defs.' Mot. Strike, ECF No. 120.

         III. ANALYSIS

         Solomon has moved to strike Davidson as an expert witness, arguing that striking his testimony is an appropriate sanction for ACI's untimely disclosure. See Solomon's Mem. Supp. 4. And the Garvey Defendants move to strike Conk on four separate grounds: that his testimony consists entirely of legal conclusions, that he has no knowledge of the appropriate standard of care, that he lacks knowledge of the facts of the case, and that he is not a qualified expert witness under Federal Rule of Evidence 702. See Garvey Defs.' Mem. Supp. Mot. Strike 5, ECF No. 120-1. The Court addresses each motion in turn. It finds Solomon's argument as to Davidson persuasive only in part, because only part of Davidson's report is directed at liability issues. And while the Court agrees that at least some of Conk's opinions, as proffered in the expert report, are inadmissible, it does not find his reliance on the D.C. Rules of Professional Conduct and other legal authorities on ethics to be per se improper, nor is it convinced by the Garvey Defendants' other arguments for striking his testimony in its entirety. The Court therefore grants both motions only in part.

         A. The Court Grants in Part Solomon's Motion to Strike Davidson as Untimely Disclosed

         The Court first reviews Solomon's motion to strike Tom W. Davidson as an expert witness. Solomon argues that Davidson should be stricken as an expert because his disclosure as a liability expert is untimely. See Solomon Mem. Supp. 2-4. The Court briefly discusses the standard for exclusion of testimony not properly disclosed, before going over the parties' arguments. The Court agrees with Solomon that at least some aspects of Davidson's proffered testimony relates to liability issues and is untimely. However, it also finds that some of Davidson's expert opinions address damages issues and are therefore timely disclosed. The Court accordingly strikes Davidson as an expert witness only as to his opinions on liability.

         Federal Rule of Civil Procedure 26 requires parties to disclose the identity their expert witnesses, see Fed. R. Civ. P. 26(2)(A), as well as provide, for each expert, an expert report containing “a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; [and] any exhibits that will be used to summarize or support [the opinions], ” Fed.R.Civ.P. 26(a)(2)(B). And under Rule 26(a)(2)(D), such a report must be disclosed “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). Pursuant to Rule 37(c), failure to disclose information as required by Rule 26(a) results in the party not being allowed to use that information, “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “Rule 37(c)(1) is a self-executing sanction[.]” Norden v. Samper,544 F.Supp.2d 43, 49 (D.D.C. 2008). ...

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