United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant, Huntington Ingalls,
Inc.'s ("Defendant's" or "the
Shipyard's") Motion for Summary Judgment. Doc. 23
("MSJ"). This matter also comes before the Court on
the Equal Employment Opportunity Commission's
("Plaintiffs" or "EEOC's") Motion to
Strike Defendant's Expert Witnesses ("Motion to
Strike"), Doc. 32. A hearing on these matters was held
on October 31, 2018. For the reasons stated below, the Court
DENIES Plaintiffs Motion to Strike and
GRANTS Defendant's Motion for Summary
FACTUAL AND PROCEDURAL HISTORY
September 13, 2017, the EEOC filed its complaint against the
Shipyard alleging that the Shipyard violated § 102 of
the Americans with Disabilities Act. Doc. 1
("Compl."). In 2013, Stanley Dowdle
("Dowdle") applied to work for the Shipyard as a
temporary leased laborer in the position of
"pipefitter." Id. After applying, Dowdle
was offered conditional employment pending his completion of
a post-offer medical examination, which included a hearing
test. Doc. 24 at 7-8; Doc. 24-4 ("Dowdle Dep.") at
7. Dowdle suffers from hearing loss, and wears hearing aids
on a daily basis to assist him in hearing. Compl. ¶ 13.
At the hearing test, Dowdle asked for the ability to use his
hearing aids, but was advised that he had to perform the test
without his hearing aids. Doc. 24 at 9; Dowdle Dep. at 52,
55. After reviewing Dowdle's hearing test results, the
Shipyard denied Dowdle employment as a leased laborer,
advising that Dowdle's hearing fell below the minimum
hearing standard. Doc. 24 at 9; Doc. 24-9 ("Denial
January 16, 2018, this Court entered a 16(b) scheduling order
("Scheduling Order"), which required the parties to
identify expert witnesses who will provide potential Rule
702, 703, or 705 evidence by July 6, 2018. Doc. 8. The
Scheduling Order also required disclosures outlined in Rule
26(a)(2)(B) ("expert reports") to be made on August
6, 2018. Id. On July 6, 2018, Defendant provided its
expert witness disclosure identifying three potential expert
witnesses: Hellen Dennie ("Dennie"), Kent Shoemaker
("Shoemaker"), and Drucilla Branche
("Branche"). Doc. 30 at 3. On August 6, 2018,
Defendant failed to provide an expert report for any of the
potential expert witnesses. Doc. 30 at 4. On August 15, 2018,
Plaintiff contacted Defendant to determine whether Defendant
intended to provide an expert report for any of its
identified experts. Doc. 30 at 3. Defendant responded by
providing an amended disclosure for Dennie and Branche. Doc.
30 at 4; See Doc. 30-5 ("Am. Discl."). The amended
disclosure contained the following summaries regarding Dennie
and Branche's testimonies:
[Dennie] [m]ay provide expert testimony regarding
Defendant's hearing test requirements, hearing
conservation program, and minimum hearing requirements as job
related and consistent with business necessity; may provide
expert testimony regarding Dowdle as a direct threat of harm
to himself and/or others; may provide expert testimony
regarding the inexistence of a reasonable accommodation for
Dowdle's hearing loss.
[Branche] [m]ay provide expert testimony regarding minimum
hearing requirements as job related and consistent with
business necessity; may provide expert testimony regarding
Dowdle as a direct threat of harm to himself and/or others;
may provide expert testimony regarding the safety hazards of
accommodations in the shipyard for workers with hearing loss.
Doc. 30 at 4-5; Am. Discl. at 2-3.
September 28, 2018, Defendant filed its Motion for Summary
Judgment. Doc. 23. On October 11, 2018, Plaintiff filed its
opposition to Defendant's Motion for Summary Judgement.
Doc. 31. On October 12, 2018, Plaintiff filed a Motion to
Strike the testimony of Branche and Dennie. Doc. 32. On
October 18, 2018, Defendant filed a reply in support of its
Motion for Summary Judgment. Doc. 37. On October 24, 2018,
Defendant filed a Motion in Limine. Doc. 38. On October 25,
2018, Defendant filed its opposition to Plaintiffs Motion to
Strike. Doc. 40. On October 30, 2018, Plaintiff filed a reply
in support of its Motion to Strike. Doc. 44. Both Plaintiffs
Motion to Strike and Defendant's Motion for Summary
Judgment are now ripe for review.
Motion to Strike
Rule of Civil Procedure 37(c) provides that "if a party
fails to provide information...as required by Rule 26(a)...
the party is not allowed to use that information ... to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or
harmless." Fed.R.Civ.P. 37(c)(1). Under Fourth Circuit
In exercising its broad discretion to determine whether a
nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion analysis,
a district court should be guided by the following factors:
(1) the surprise to the party against whom the evidence would
be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure
to disclose the evidence.
S. States Rack And Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 597 (4th Cir. 2003).
Motion for Summary Judgment
judgment under Rule 56 is appropriate only when the court,
viewing the record as a whole and in the light most favorable
to the nonmoving party, determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986); Terry's Floor Fashions v. Burlington
Indus., 763 F.2d 604, 610 (4th Cir. 1985). Once a party
has properly filed a motion for summary judgment, the
nonmoving party may not rest upon mere allegations in the
pleadings but must instead set forth specific facts
illustrating genuine issues for trial. Celotex, 477
U.S. at 322-24. Such facts must be presented in the form of
exhibits and sworn affidavits. Failure to rebut the motion
with such evidence will result in summary judgment when
appropriate. "[T]he plain language of Rule 56(c)
mandates the entry of summary judgment... against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial." Id. at 322.
scintilla of evidence is insufficient to withstand a motion
for summary judgment. Rather, the evidence must be such that
the factfinder reasonably could find for the nonmoving party.
See Anderson, 477 U.S. at 252. Although the court
must draw all justifiable inferences in favor of the
nonmoving party, in order to successfully defeat a motion for
summary judgment, a nonmoving party cannot rely on "mere
belief or conjecture, or the allegations and denials
contained in his pleadings." Doyle v. Sentry
Ins., 877 F.Supp. 1002, 1005 (E.D. Va. 1995) (citing
Celotex, 477 U.S. at 324).
Motion to Strike
Plaintiff argues that the testimony of Defendant's
witnesses Dennie and Branche should be excluded because
Defendant did not provide the disclosures required under
Federal Rules of Civil Procedure 26(a)(2)(B) and 26(a)(2)(C).
Doc. 30 at 1. For the reasons stated below, the Court
FINDS that Defendant was not required to
provide an expert report under Rule 26(a)(2)(B), that the
disclosures provided by Defendant were adequate under Rule
26(a)(2)(C), and, even if Defendant's expert disclosures
were deficient, such deficiencies were cured when Defendant
made its experts available for deposition well in advance of
Rule of Civil Procedure 26(a)(2)(A) requires a party to
disclose the identity of any witness it may use at trial to
present evidence under Federal Rules of Civil Procedure 702,
703, and 705 ("expert testimony"). Fed.R.Civ.P.
26(a)(2)(A). When an expert witness is "one retained or
specially employed to provide expert testimony in the case or
whose duties as the party's employee regularly involve
giving expert testimony" the disclosing party must
additionally provide an expert report for the expert witness.
Fed.R.Civ.P. 26(a)(2)(B). The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Id. If a witness is not required to provide an
expert report, the witness must nevertheless provide a
disclosure of the subject matter on which the witness is
expected to present expert evidence and "a summary of
the facts and opinions to which the witness is expected to
testify." Id. Therefore, to determine whether
an expert report is required under Rule 26(a)(2)(B) or Rule
26(a)(2)(C), the Court must determine first whether the
witness testifying is offering expert testimony. If the
witness is offering expert testimony, then the Court must
secondarily determine whether an expert report under Rule
26(a)(2)(B) or a summary of facts and opinions under
26(a)(2)(C) is required. Thirdly, the Court must determine
whether the disclosures provided meet the standards set forth
in Rules 26(a)(2)(B) and 26(a)(2)(C).
complains that the deposition testimony of Defendant's
experts Dennie and Branche "stray[s] well beyond the
realm of a Rule 26(a)(2)(C) witness." Doc. 30 at 5.
Therefore, Plaintiff contends that it should have been
provided with an expert report for Dennie and Branche.
Defendant argues that, even assuming arguendo that
Dennie and Branche proffer "expert testimony"
Defendant was not required to provide expert reports for
Dennie or Branche, because they were not "retained or
specially employed" for the purpose of litigation. Doc.
40 at 9-10, n. 6 (citing Va. Elec. & Power Co. v. Sun
Shipbldg, & Dry Dock Co., 68 F.R.D. 397, 407-08
(E.D. Va. 1975) (distinguishing between an expert employed
for purposes of the specific litigation as opposed to an
employee who "though [he] be an expert. . . his contact
with the case is not in his capacity as an impartial
observer, but is instead as one going about his duties as a
is Defendant's 30(b)(6) witness who was designated to
offer testimony regarding the Shipyard's minimum hearing
standard. Doc. 40 at 4. Dennie testified that she had
personal knowledge that the minimum hearing standard was in
effect at the time that Dowdle was denied employment.
Id; see Doc. 40-1 ("Dennie 30(b)(6) Dep.")
at 5-6. Defendant contends that Dennie makes her expert
opinions based on her knowledge from working at the Shipyard
and dealing with the hearing of employees at the Shipyard,
including those who perform pipefitting work. Doc. 40 at 7-8.
Defendant contends that Branche based her expert opinion
regarding the minimum hearing requirements and their relation
to the safety and health of employees on over 25 years of
employment with the Shipyard, her personal interaction with
the Shipyard's hearing conservation program, her personal
knowledge of the pipefitter position, and her personal
experience designating high noise environments. Id.
at 5-6; See Doc. 40-2 ("Branche Dep.").
on Dennie and Branche's personal experience with the
health and safety standards of the shipyard and the hearing
requirements, Defendant contends that 26(a)(2)(B) expert
reports were not required. Further, Defendant argues that the
disclosures that it provided to Plaintiff meet the
requirements of 26(a)(2)(C).
reply, Plaintiff argues that Defendant's experts should
have provided expert reports because neither of the experts
personally examined Dowdle. Therefore, their opinions are
based, in part, on hypotheticals regarding a person with
Dowdle's level of hearing impairment and not based on
their personal observations or treatment of Dowdle's
hearing. Doc. 44 at 4. ...