United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART DEFENDANT HENRY
A. SOLOMON'S MOTION TO STRIKE; GRANTING IN PART THE
GARVEY DEFENDANTS' MOTION TO STRIKE
RUDOLPH CONTRERAS United States District Judge.
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.
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.
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.
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.
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,
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.
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.
The Court Grants in Part Solomon's Motion to Strike
Davidson as Untimely Disclosed
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.
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). ...