United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
MAGISTRATE JUDGE'S ORDER GRANTING PLAINTIFFS' MOTION
FOR LEAVE TO FILE EXPERT DISCLOSURES AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiffs missed their expert disclosure deadline and then
filed a motion asking the magistrate judge to allow them to
make an expert disclosure out of time. ECF No. 37. Magistrate
Judge James E. Seibert entered an order granting the
plaintiffs' motion for leave to file expert disclosures.
ECF No. 90. The defendant then filed objections to the
magistrate judge's order. ECF No. 107. For the following
reasons, the magistrate judge's order is affirmed and
adopted and the defendant's objections are overruled.
for defendant State Farm Automobile Insurance Company
(“State Farm”) removed this case to this Court on
April 3, 2017, from the Circuit Court of Ohio County, West
Virginia. The case arises from an automobile accident in
which a woman, Misty Merinar, collided with the vehicle
Douglas Sarcopski (“Mr. Sarcopski”) was driving
and in which Sharon Sarcopski (“Mrs. Sarcopski”)
was a passenger. Plaintiffs Douglas and Sharon Sarcopski were
insured under a first-party automobile insurance policy
purchased and contracted from State Farm. The plaintiffs
allege that the collision was entirely the fault of Ms.
Merinar. Mr. Sarcopski made a claim for Mr. Merinar's
liability policy limits of $50, 000.00 and was paid by Ms.
Merinar's first-party liability carrier, Safeco Insurance
Company. The plaintiffs allege that State Farm has refused to
timely settle Mr. Sarcopski's claim for underinsured
motor vehicle insurance policy benefits, even though it was
clear to State Farm that they were liable to Mr. Sarcopski
for the injuries, damages, and losses sustained by him in
excess of the liability policy limits paid by Safeco.
plaintiffs filed a motion for leave to file expert
disclosures. ECF No. 37. In the memorandum in support of that
motion, the plaintiffs argue that their failure to timely
disclose an expert witness was substantially justified or is
harmless. ECF No. 66 at 1. The plaintiffs indicate that one
of their experts, Vincent King (“King”), did not
accept the first-party bad faith case due to critical missing
entries. Id. at 3. Plaintiffs allege that after King
rejected their case, plaintiffs reviewed the claim file that
is comprised of 2756 pages. Id. After, the
plaintiffs indicate that they proceeded to enlist a new
expert, Jack Lane (“Lane”), and that he returned
their call or message on April 17, 2018. Id.
Plaintiffs allege that Lane informed the plaintiffs that he
had been ill and retired from doing expert work. Id.
The plaintiffs argue that allowing the plaintiffs to name an
insurance expert would not surprise the defendant since its
counsel is experienced and the defendant did not file a
motion to exclude the plaintiffs' expert. Id. at
4-5. Moreover, the plaintiffs argue that, even if the
defendant is surprised by the plaintiffs' insurance
expert, the issue can be cured because: (1) the trial date
does not need to be moved; (2) the Court has discretion to
extend deadlines to supplement expert opinions and reports;
and (3) the issues presented are clear and not complicated.
Id. at 5-8. Lastly, the plaintiffs argue that the
evidence is important to the administration of justice since
the plaintiffs have no other insurance expert. Id.
defendant State Farm then filed a memorandum in opposition to
the plaintiffs' motion for leave to file expert
disclosures. ECF No. 69. In the memorandum, the defendant
first argues that the plaintiffs have not been diligent in
complying with the Court's scheduling order. The
defendant further argues that there was no reason for the
defendant to file a motion to exclude an expert if an expert
was never identified by the plaintiffs. Id. at 5.
Moreover, the defendant asserts that the late disclosure of
an expert may complicate the facts and issues of the case.
Id. at 7.
magistrate judge set an evidentiary hearing and argument on
the plaintiffs' motion for leave to file expert
disclosures. ECF No. 61. That hearing was later rescheduled.
ECF No. 62. After briefing by the parties, the magistrate
judge entered an order granting the plaintiffs' motion
for leave to file expert disclosures. ECF No. 90.
defendant filed timely objections to that order (ECF No.
107). In its objections, State Farm first argues that the
facts in Southern States are “entirely
distinguishable, ” in that the plaintiffs here failed
to properly disclose any expert or make an expert witness
disclosure in compliance with the scheduling order (ECF No.
8). Id. at 4. Moreover, the defendant argues that
the plaintiffs provided no substantial justification for the
delay, and since they did not timely disclose, State Farm
would be unduly prejudiced at trial. Id. The
defendant further contends that even if the test in
Southern States Rack and Fixtures, Inc. v. Sherwin
Williams Co., 318 F.3d 592 (4th Cir. 2003), is applied,
the plaintiffs fail to meet several elements. Id. at
5. The defendant specifically emphasizes prong 4 of the test,
arguing that the magistrate judge's order incorrectly
found that the parties provided sufficient explanation for
the delay. Id. at 6. The defendant alleges that the
plaintiffs waited nearly a year after the scheduling order
was entered and after State Farm's claim file was
provided and approximately one month before the expert
disclosure deadline before even contacting their first expert
witness. Id. Lastly, the defendant argues that there
is a misunderstanding by the magistrate judge as to what type
of expert the plaintiffs planned to disclose. Id. at
6-7. For the foregoing reasons, the defendant requests the
Court set aside the magistrate judge's order (ECF No.
90). Id. at 7.
Federal Rule of Civil Procedure 72(a), a district court may
refer to a magistrate judge “a pretrial matter not
dispositive of a party's claim or defense.”
Fed.R.Civ.P. 72(a). The parties may file objections to the
magistrate judge's order, and the magistrate judge's
ruling may be reversed only on a finding that the order is
“clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1). “A
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a
mistake has been committed.” United States v.
United States Gypsum Co., 333 U.S. 354, 68 S.Ct. 525, 92
L.Ed. 746 (1948). In light of the broad discretion given to a
magistrate judge in the resolution of nondispositive
discovery disputes, the court should only overrule a
magistrate judge's determination if this discretion is
abused. Detection Sys., Inc. v. Pittway Corp., 96
F.R.D. 152, 154 (W.D. N.Y. 1982); Shoop v. Hott, No.
5:08CV188, 2010 WL 5067567, at *2 (N.D. W.Va. Dec. 6, 2010).
Rule of Civil Procedure 26(b)(1) permits parties to
“obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). In considering proportionality, courts must
consider: (1) “the importance of the issues at stake in
the action;” (2) “the amount in
controversy;” (3) “the parties' relative
access to relevant information;” (4) “the
parties' resources;” (5) “the importance of
the discovery in resolving the issues;” and (6)
“whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Id.
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
Id. Courts may forbid certain disclosures or
discovery “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
plaintiffs requested leave to file expert disclosures. ECF
No. 37. Magistrate Judge Seibert granted the plaintiffs'
motion, concluding that the applicable balancing test to
determine whether the plaintiffs' failure to make their
expert disclosures was ...