UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

G.K., by their next friend, Katherine Cooper et al.

v. Case No. 21-cv-4-PB Opinion No.

Christopher Sununu, Governor of New Hampshire et al.

MEMORANDUM AND ORDER

The plaintiffs in this putative class action have moved to supplement

the reports of four experts who filed declarations in support of the plaintiffs’

motion for class certification. The defendants object, arguing that the

untimely supplemental declarations should be excluded under Federal Rule

of Civil Procedure 37(c)(1). Based on the totality of the circumstances, I

conclude that preclusion is unwarranted and therefore grant the plaintiffs’

motion.

I. BACKGROUND

A. Procedural History

Four adolescents in the legal custody of the New Hampshire Division of

Children, Youth, and Families (DCYF) filed a putative class action complaint

against several state officials challenging the state’s operation of its foster

care system. Doc. 1 at 1-3. The complaint alleged that the defendants are violating Title II of the Americans with Disabilities Act (ADA),

et seq., and section 504 of the Rehabilitation Act,

,

by unnecessarily placing older foster youth with mental impairments in

congregate care facilities rather than community-based foster homes. Doc. 1

at 52-57. The complaint further alleged that the defendants are violating the

Adoption Assistance and Child Welfare Act (AACWA),

et

seq., by failing to comply with federal case planning requirements. 1 Doc. 1 at

51-52. The named plaintiffs seek to represent a class of:

All children, ages 14 through 17, who:

(1) are, or will be, in the legal custody or under the protective supervision of DCYF under

-C:3 (XVII) and/or (XXV);

(2) have a mental impairment that substantially limits a major life activity, or have a record of such an impairment; and

(3) currently are, or are at serious risk of being, unnecessarily placed in congregate care settings.

Doc. 152 at 2.

Following a partially successful motion to dismiss and a preliminary

pretrial conference, the court approved a joint discovery plan in March 2022.

Doc. 83 at 2. In that plan, the parties agreed to proceed with merits and class

1 The plaintiffs also brought a claim under the Due Process clause of the Fourteenth Amendment, which I dismissed. Doc. 49 at 18-19.

2 certification discovery simultaneously and the plaintiffs expressed their

intent to “file a motion for class certification as soon as is practicable[.]” Doc.

77 at 9-10, 14.

Discovery disputes began almost immediately, requiring the court to

rule on multiple motions to compel as well as several motions to continue and

extend the deadlines outlined in the initial discovery plan. See, e.g., Doc. 91;

Doc. 120; Doc. 138; Doc. 190. Consequently, the plaintiffs were unable to

obtain all requested discovery before filing their motion for class certification

in March 2023.

For example, due to the volume of material and the relatively

disorganized nature of their records, the defendants were unable to produce

the case files of all putative class members until May 2023—five months after

the court’s initial production deadline and two months after the plaintiffs had

filed their motion for class certification. Doc. 163 at 4; see also Doc. 119 at 13

(ordering the defendants to produce the putative class files by December

2022). Similarly, the defendants did not produce accurate data reflecting the

placement histories of older foster youth (referred to by the parties as

“Interrogatory 1.2 data”) until nearly three months after the plaintiffs’

experts had submitted their declarations analyzing an earlier, and

admittedly flawed, dataset. Doc. 176-14 at 20 n.8.

3 The defendants also redacted some discovery materials and withheld

others. For example, the defendants initially produced a redacted “CAT

dataset,” which detailed the level-of-care recommendations from the CAT

assessment tool that the defendants use to guide their placement decisions,

but did not produce an unredacted version of the dataset until November

2023. Doc. 281-27 at 2-3; Doc. 281-28 at 2. The defendants also withheld

certain electronically stored information (ESI) production after the plaintiffs

refused to agree to a clawback provision. Doc. 225-3 at 2-3. Production of the

withheld ESI discovery did not begin until October 2023 and is still ongoing

today. Doc. 249 at 2.

Although the plaintiffs were aware of these discovery deficiencies, they

did not seek to extend the class certification briefing deadlines. Rather, the

plaintiffs opted to move forward on an expedited basis out of concern that the

named plaintiffs’ claims would become moot if they were to exit DCYF

custody before the court ruled on class certification. Doc. 137 at 3-4. The

motion for class certification became fully ripe in August 2023 and the court

held a motion hearing in November 2023.

At the hearing, the plaintiffs argued that the commonality requirement

of Rule 23(a)(2) was satisfied because the plaintiffs’ claims challenged three

“well-defined common practices” of the defendants: the use of congregate care

as “default placements;” the use of congregate care as “long-term housing;”

4 and the systematic failure “to provide and maintain timely, accurate, and

legally sufficient case plans.” Plfs. Ex. 1 to November 14, 2023, Motion

Hearing at 3 (recorded at Doc. 256). The plaintiffs identified various

underlying causes of these practices, including (1) the disproportionate

funding of congregate care placements over community placements; (2) the

failure to adequately recruit and train qualified foster parents; (3) the failure

to identify and utilize kinship placements; and (4) reliance on a flawed CAT

assessment tool to guide placement decisions. Id. at 9; see also Doc. 258 at 19-

20. I expressed some skepticism as to whether the three alleged practices

were truly “common driver[s]” sufficient to satisfy commonality, as opposed to

recharacterizations of the claimed legal violations, and questioned whether

the asserted “underlying causes” would constitute more appropriate drivers.

Doc. 258 at 18, 20. See Parent/Pro. Advoc. League v. City of Springfield,

(1st Cir. 2019) (noting that, in order to establish commonality,

plaintiffs must ordinarily point to a “common driver” behind the alleged class

harm).

Immediately after the hearing, the parties agreed to stay litigation in

order to pursue mediation. Doc. 259. While mediation was ongoing, the last of

the named plaintiffs exited DCYF custody and the plaintiffs amended their

complaint to add a fifth named plaintiff, D.M. Doc. 263 at 2; Doc. 273. The

5 parties were ultimately unable to reach a resolution, and mediation came to a

close in April 2024.

Two weeks later, the plaintiffs filed the instant motion to supplement

the record with additional reports from their four experts. Doc. 277. The

plaintiffs argue that, pursuant to Federal Rule of Civil Procedure 26(e), they

should be permitted to supplement the class certification record with the

additional expert declarations and supporting exhibits in order to incorporate

and respond to evidence provided by the defendants after the initial expert

reports were submitted in March 2023. The defendants assert that the

supplemental declarations do not merely incorporate new evidence, but

rather substantially expand upon the experts’ initial reports and should be

excluded under Federal Rule of Civil Procedure 37(c)(1) as untimely expert

disclosures.

B. Expert Reports

The plaintiffs’ motion seeks to supplement the reports of Bryan Victor,

Tracey Feild, Daryl Chansuthus, and Theodore Cross, all of whom filed

expert reports under Federal Rule of Civil Procedure 26(a) in support of the

plaintiffs’ motion for class certification.

1. Bryan Victor

Victor is a professor of social work retained by the plaintiffs to perform

data analysis of the defendants’ placement and case planning practices. Doc.

6 152-15 at 1-2. In his initial declaration, Victor analyzed data collected by the

federal government to determine what percentage of older foster youth with

mental health diagnoses in DCYF custody were placed in congregate care. Id.

at 3.

The plaintiffs now seek to supplement the record with two

supplemental declarations from Victor. Victor’s first supplemental

declaration analyzes (1) the updated Interrogatory 1.2 data to determine the

frequency and duration of putative class members’ placement in congregate

care and (2) the recently unredacted CAT data. Doc. 281-3 at 2. Victor’s

second supplemental declaration analyzes the putative class members’ case

files to determine the percentage of individuals with federally compliant case

planning forms. Doc. 281-12 at 3.

2. Tracey Feild

Feild, an expert in child welfare systems management, was asked to

evaluate New Hampshire’s use of congregate care placements for older foster

youth with mental health diagnoses. Doc. 154-3 at 1-2. Feild’s first

declaration analyzed the flawed Interrogatory 1.2 dataset that was initially

produced by the defendants to determine the frequency and duration of

congregate care placements for older foster youth with mental health

diagnoses. Id. at 8-12. Feild then discussed the defendants’ expansion of its

congregate care capacity as well as New Hampshire’s shortage of community-

7 based mental health services and foster placements, which Feild opined

contributed to the defendants’ overreliance on congregate care. Id. at 12-18.

Feild concluded by providing recommendations for steps that the defendants

could take to rectify the identified deficiencies, including (1) recruiting

specialized foster homes for older foster youth and (2) increasing the use of

relative and fictive kin caregivers. Id. at 18-20.

In August 2023, after the defendants produced the corrected

Interrogatory 1.2 data, Feild submitted a supplemental declaration that

updated her prior calculations but did not otherwise alter her conclusions.

Doc. 207-1 at 1-2. This supplemental declaration was filed along with the

plaintiffs’ reply brief in support of their motion for class certification.

The plaintiffs now seek to file a second supplemental declaration from

Feild. Feild’s second supplemental declaration proceeds in two parts. The

first part conducts another analysis of the frequency and duration of

congregate care placements using the updated Interrogatory 1.2 data, but

this time limits the analysis to data from “per se” putative class members;

that is, older foster youth with specific mental health diagnoses that

necessarily qualify as a disability under the ADA. Doc. 277-2 at 8. The second

part collects and analyzes evidence of various alleged practices by the

defendants that, in Feild’s opinion, contribute to the defendants’ overreliance

on congregate care placements. Id. at 10. Specifically, Feild discusses

8 evidence that the defendants (1) underutilize kinship care and do not provide

sufficient reimbursement rates for such care; (2) do not adequately recruit

and support foster homes that could care for older foster youth with mental

health diagnoses; (3) disproportionately fund congregate care facilities rather

than community-based placements; and (4) rely on a CAT assessment process

that, according to Victor’s data analysis, overwhelmingly and unnecessarily

recommends congregate care placements. Id. at 10-28.

3. Daryl Chansuthus

Chansuthus is a child welfare case management expert retained to

analyze the defendants’ case planning practices. Doc. 154-1 at 1. In her initial

declaration, Chansuthus reviewed the four initial named plaintiffs’ case files

to determine whether they contained federally mandated case planning

documents. Id. at 10. Chansuthus concluded that none of the named

plaintiffs’ case planning documents were compliant and opined that the

omissions were likely the result of systemic, rather than isolated, failures. Id.

at 23, 26. Chansuthus then recommended several actions that the defendants

could take to address those failures, including (1) implementing a system to

notify caseworkers when case or transition plans are overdue; (2) ensuring

that caseworkers receive regular feedback from their supervisors on their

case planning compliance; and (3) assigning older foster youth with mental

9 health diagnoses to caseworkers with specialized knowledge and training. Id.

at 26.

Chansuthus’ proffered supplemental declaration makes three

contributions to her previous declaration. First, Chansuthus evaluated D.M.’s

case file to determine whether it complied with federal case planning

requirements. Doc. 279 at 12-25. Second, Chansuthus considered Victor’s

recent analysis of the putative class members’ case files and opined that the

defendants’ failure to provide federally compliant case plans “prolongs [foster

youth’s] confinement to congregate facilities.” Id. at 26-29. Finally,

Chansuthus elaborated on her previous recommendations and provided some

new recommendations as to how the defendants can improve their case

planning. Id. at 29-44. Specifically, Chansuthus recommended that, in

addition to the steps identified in her initial declaration, the defendants could

(1) implement a so-called “Family Team Decision-Making” case planning

model; (2) develop a “continuous quality improvement” process to oversee

caseworkers’ case planning activities; and (3) ensure that case plans are

“rooted in a thorough and comprehensive assessment of the family’s

strengths and needs.” Id.

4. Theodore Cross

Cross is a psychologist who was charged with evaluating the named

plaintiffs’ disabilities and placement needs. Doc. 154-2 at 1, 4. Cross’ first

10 declaration rendered this evaluation for the initial four named plaintiffs and

his supplemental declaration does the same for the newly-added plaintiff. Id.

at 4-5; Doc. 281 at 1-2.

II. STANDARD OF REVIEW

Rule 26(a) requires expert witnesses to provide written reports

containing “a complete statement of all opinions [they] will express and the

basis and reasons for them” in accordance with disclosure deadlines

established by the court. (emphasis added). Nonetheless, under Rule 26(e), a

party may “supplement or correct” an expert report if the party learns that

the report is “incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other parties during

the discovery process or in writing[.]”

Although Rule 26(e) allows for the addition of certain opinions that

were not disclosed in the initial Rule 26(a) report, it does not permit a party

to “subvert discovery deadlines by supplementing its expert reports with

entirely new theories or with information that it should have included in the

initial reports.” Noffsinger v. Valspar Corp., No. 09 C 916,

,

at *3 (N.D. Ill. Nov. 27, 2012); accord Poulis-Minott v. Smith,

(1st Cir. 2004). “Accordingly, a supplemental expert report that

states additional opinions or seeks to strengthen or deepen opinions

expressed in the original report” exceeds the scope of permissible

11 supplementation under Rule 26(e). 6 Moore’s Federal Practice § 26.131[2] (3d

ed. 2024).

Opinions that are not adequately disclosed in accordance with Rule

26(a) and 26(e) are subject to exclusion under Rule 37(c)(1). Lawes v. CSA

Architects & Eng’rs LLP,

(1st Cir. 2020). Rule 37(c)(1) states

that, “[i]f a party fails to provide information or identify a witness as required

by Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion . . . unless the failure was

substantially justified or is harmless.” Absent substantial justification or

harmlessness, “the baseline sanction for failure to comply with Rule 26 is

preclusion[.]” Gay v. Stonebridge Life Ins. Co.,

(1st Cir. 2011).

Preclusion is not, however, “strictly required,” and the district court retains

discretion to impose a less severe sanction. Lawes,

.

In exercising this discretion, the “court should consider the totality of

events and then choose from the broad universe of available sanctions in an

effort to fit the punishment to the severity and circumstances of the

violation.” Young v. Gordon,

(1st Cir. 2003). Relevant

considerations include:

(1) the history of the litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late disclosure’s adverse effects—e.g., the

12 surprise and prejudice associated with the late disclosure; and (5) the late disclosure’s impact on the district court’s docket.

Esposito v. Home Depot U.S.A, Inc.,

(1st Cir. 2009).

“Although analysis of each factor is relevant, the ‘focus of a preclusion inquiry

is mainly upon surprise and prejudice’ to the [opposing party].” Lawes,

(quoting Thibeault v. Square D Co.,

(1st Cir.

1992)).

III. ANALYSIS

The opinions in the plaintiffs’ proffered supplemental reports, broadly

speaking, fall into two categories. Some of the opinions pertain solely to D.M.,

the newly-added plaintiff, in order to demonstrate that D.M. is an

appropriate class representative. The remainder of the opinions analyze the

defendants’ placement and case planning practices in order to establish the

existence of system-wide failures and identify the discrete causes of these

failures. I consider each category of evidence in turn.

A. Evaluation of D.M.

As an initial matter, it is not entirely clear whether the defendants

seek to preclude the experts’ opinions on D.M. See Lohnes v. Level 3

Commc’ns, Inc.,

(1st Cir. 2001) (noting that Rule 37(c)(1)

“places a burden on the objecting party to move for preclusion”). Although the

defendants specifically assert that “preclusion is the appropriate remedy with

13 respect to the Feild and Victor reports, and most of the Chansuthus report,”

they acknowledge that the analysis is “slightly different” with regards to the

Cross report and “the portions of the Chansuthus report which address D.M.”

Doc. 286 at 12, 14.

Regardless, I conclude that the plaintiffs are substantially justified in

supplementing their expert opinions with analysis of D.M.’s ability to serve

as a suitable class representative. The need to add a new plaintiff did not

arise until the last of the original four named plaintiffs exited DCYF custody

in January 2024. Because the plaintiffs could not have foreseen the need for

analysis of D.M. when they filed their initial expert reports in March 2023,

they are substantially justified in supplementing their expert disclosures

with opinions that pertain to D.M.’s ability to serve as a class

representative. 2 See 7 Moore’s Federal Practice § 37.62 (3d ed. 2024) (“a party

may be substantially justified in not disclosing evidence if the party could not

have been expected to foresee its relevance.”).

2 The plaintiffs recently moved to amend their complaint to add a new named plaintiff, B.D., given the likelihood that D.M. will exit DCYF custody before the court issues a ruling on class certification. Doc. 297. If their motion is granted, my conclusion that they may supplement their expert reports with analysis of a new named plaintiff would apply to B.D. as well.

14 B. Opinions on the Defendants’ Practices

The remaining portions of the plaintiffs’ supplemental expert

declarations present a closer question. The plaintiffs contend that

supplementation is appropriate under Rule 26(e) because the experts’

opinions simply incorporate and evaluate the defendants’ late produced

evidence. The defendants do not dispute that at least some of the expert

opinions are in response to evidence produced after the plaintiffs moved for

class certification, but argue that many of the opinions rely on information

that was previously available to the plaintiffs.

If it is true that the supplemental opinions are based solely on evidence

that was unavailable when the experts rendered their initial reports, then

supplementation would be entirely appropriate. See, e.g., Crawford v. ITW

Food Equip. Grp., LLC,

(11th Cir. 2020)

(“Supplementation is permitted under Rule 26(e) to correct inaccuracies or

add information not available when the report was filed.”); Luke v. Fam. Care

& Urgent Med. Clinics,

, 500 (9th Cir. 2009) (noting that

supplementation is appropriate to “fill[] the interstices of an incomplete

report based on information that was not available at the time of the initial

disclosure”) (quoting Keener v. United States,

(D. Mont.

1998)); In re Zofran (Ondansetron) Prods. Liab. Litig., MDL No. 1:15-md-

2657-FDS,

, at *3-4 (D. Mass. Oct. 23, 2019) (noting that

15 “experts may ‘fill gaps in initial reports when they later learn of the missing

information’” and holding that an expert was permitted to supplement his

report with evaluation of a study that was “published after his initial report”)

(quoting Bentley v. Highlands Hosp. Corp., No. 15-97-ART-EBA,

, at *4 (E.D. Ky. Oct. 6, 2016)). However, I am unable to discern from

the present record whether the experts’ opinions are based solely on

information revealed through the defendants’ late discovery or incorporate

information that was previously made available. While some of the opinions

reference concededly late discovery—such as the putative class members’

case files or the updated Interrogatory 1.2 data—other opinions rely on

internal documents that may or may not have been disclosed at an earlier

point. Because the record does not indicate when those documents were

produced, I cannot conclude that the plaintiffs’ supplementation is warranted

under Rule 26(e) or substantially justified under Rule 37(c)(1).

The question then becomes whether, considering the totality of the

circumstances, preclusion is an appropriate sanction. In order to guide this

inquiry, I consider each of the Esposito factors in turn.

Beginning with the history of the litigation, there is no indication that

the plaintiffs have “deliberately and repeatedly disregarded [their] discovery

obligations.” Lawes,

. To the contrary, this appears to be the

16 first instance where the plaintiffs have failed to comply with disclosure or

discovery deadlines.

Moreover, the plaintiffs’ have at least partially justified their request to

supplement their disclosures. Cf. Macaulay v. Anas,

(1st Cir.

2003) (concluding that preclusion was appropriate where the party failed to

“advance[] any real justification for [the] tardy emergence” of the expert

report). As a result of the significant discovery complications that have

plagued this case from its inception, relevant evidence has trickled in before,

during, and after class certification proceedings. This has, understandably,

presented challenges for the plaintiffs as they attempt to certify their class

before the named plaintiffs exit DCYF custody and has resulted in a

constantly moving target for the experts.

In the defendants’ view, the supplemental opinions are not a result of

the late discovery, but rather constitute a last-ditch effort by the plaintiffs to

save their claims after my comments at the motion hearing made clear that

the plaintiffs’ alleged common practices were insufficient to establish

commonality. But the defendants’ argument ignores the fact that the vast

majority of the practices that the experts discuss in their supplemental

declarations were identified by the plaintiffs at earlier points in the

17 proceedings. 3 With the exception of a few practices that were not previously

raised by the plaintiffs, the supplemental declarations largely expand upon

the plaintiffs’ preexisting theories using additional evidence—much of which

was not available when the experts issued their initial reports.

But even assuming that the supplemental expert reports were purely

driven by my statements at the motion hearing, it does not necessarily follow

that the reports should be excluded. “Though no one’s fault, evidence is

sometimes obtained belatedly when a gap in proof is perceived or a new

source is uncovered. Discovery aims only to mitigate surprise, for nothing can

eliminate it entirely from trial practice.” Williams v. Monarch Mach. Tool Co.,

(1st Cir. 1994) (finding that it was not an abuse of

discretion for a district court judge to permit a late-disclosed expert to testify

at trial, even though there were “substantial differences” between his opinion

3 See, e.g., Doc. 207 at 14-15 (discussing the flaws in the defendants’ use of the CAT assessment tool); Plfs. Ex. 1 to November 14, 2023, Motion Hearing at 9-17 (collecting evidence of the defendants’ disproportionate funding of congregate care, failure to train and recruit appropriate foster families, underutilization of kinship placements, and faulty CAT assessment practices); Doc. 154 at 18 (noting the lack of policies to ensure that children and their families are involved in the case planning process); Doc. 154-3 at 12-18 (discussing the state’s expansion of congregate care facilities, shortage of community-based mental health services and placements, and underutilization of kin placements); Doc. 154-1 at 26 (discussing the lack of supervisory intervention over case planning deficiencies, the need for systemic case planning notifications, and the benefit of utilizing specialized case workers for older foster youth with metal impairments).

18 and the previously disclosed expert’s opinion). While the discovery

complications and my identification of potential issues with the plaintiffs’

arguments do not “excuse” the plaintiffs’ late disclosure, such circumstances

nonetheless “reduce[] the likelihood that [the plaintiffs] acted in ‘bad faith’”

or engaged in inappropriate gamesmanship by concealing their experts’

opinions. Cf. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co.,

(10th Cir. 1999) (finding that undisclosed testimony “prompted”

by a prior court ruling did not “excuse [the plaintiff] from supplementing its

disclosure,” but nonetheless undermined the appearance of bad faith). The

plaintiffs’ justification for the late disclosure, combined with the absence of

any evidence of bad faith or gamesmanship, leans in favor of permitting

supplementation.

The plaintiffs’ significant need for the evidence also weighs in favor of

permitting supplementation. Given the “strong policy favoring the disposition

of cases on the merits,” courts are reluctant to preclude evidence where doing

so would “carr[y] the force of a dismissal” unless “none of the lesser sanctions

available to it would truly be appropriate.” Lawes,

(cleaned

up); accord 6 Moore’s Federal Practice § 26:27[2] (collecting cases and noting

“[t]he reluctance of the courts to exclude important evidence because of a

failure to disclose without indications that the failure to disclose was the

result of willfulness, bad faith, or substantial fault”). The supplemental

19 evidence here is key to the plaintiffs’ motion for class certification and,

therefore, the continuing validity of their class claims.

For example, the supplemental reports provide more substance to the

alleged practices that support the plaintiffs’ theory of commonality, which I

have recognized as the “primary issue” in this case. Doc. 258 at 3. This is

particularly true for the putative class’s AACWA claim, which turns on the

existence of class-wide case planning failures. The supplemental expert

reports make important contributions to this claim by analyzing case

planning across the entire class, rather than just the named plaintiffs. Such

evidence is highly important, if not entirely necessary, to class certification.

Cf. Esposito,

(finding that it was an abuse of discretion for a

court to impose “a fatal sanction . . . for a single oversight”).

Of course, that the plaintiffs’ supplemental declarations “might well

prove crucial” does not, standing alone, “bar preclusion of expert testimony,”

particularly where supplementation would result in significant prejudice.

Presstek, Inc. v. Creo, Inc.,

,

, at *7 (D.N.H.

Mar. 30, 2007). The prejudice here, however, is minimized by the fact that

the defendants cannot claim surprise. Macaulay,

(“surprise

and prejudice go hand in hand.”). As I explained, the majority of the theories

raised in the supplemental opinions were at least foreshadowed by the

plaintiffs’ previous filings. See Lawes,

(considering a party’s

20 pre-trial disclosures and expert depositions in evaluating whether an

undisclosed expert opinion was prejudicial). And all of the opinions are based

on the defendants’ own documents. See Curet-Velazquez v. ACEMLA de P.R.,

Inc.,

(1st Cir. 2001) (“appellants cannot claim that the

reference to these new documents was an unfair surprise because they

themselves prepared and disclosed the documents.”). Moreover, the plaintiffs

put the defendants on notice of their intent to supplement the expert reports

prior to mediation and filed the supplemental reports without delay once

mediation concluded. Doc. 259 at 2.

To be sure, the supplemental reports could still prejudice the

defendants to a certain extent insofar as the defendants have already

deposed the plaintiffs’ experts, produced their own expert reports, and

submitted various motions, all in reliance on the experts’ initial reports. This

prejudice, however, can be adequately cured by permitting additional

discovery and providing the defendants with an appropriate opportunity to

respond to the reports with supplemental briefing and evidence. See

Williams,

(concluding that prejudice from a late disclosure

could be remedied by delaying trial in order to permit additional discovery

and depositions); Gillum v. United States,

(10th Cir.

2009) (concluding that prejudice from late expert disclosure could be cured by

making the expert available for a second deposition). With these measures in

21 place, the defendants will not be meaningfully prejudiced by the late

disclosure, which weighs heavily in favor of allowing supplementation. 4 See

Lawes,

(“we have never affirmed an expert’s preclusion when

we were not persuaded by the proffered evidence of surprise or prejudice in

the record . . . . ”).

Considering each of these factors under the totality of the

circumstances, I conclude that preclusion is not an appropriate sanction

under Rule 37(c)(1). Rather, the more appropriate course is to allow the

plaintiffs to supplement their expert reports with the supplemental

declarations and accompanying exhibits but provide the defendants with an

adequate opportunity to respond to the new reports. 5

4 As both parties recognize, these additional measures will impact the court’s docket by pushing a decision on class certification several months into the future. This disruption to the docket, while not insignificant, is nonetheless mitigated by the fact that the case is still in its early stages with no impending trial. Cf. Primus v. United States,

(1st Cir. 2004) (“evidentiary changes on the eve of trial are much more problematic and disruptive of trial preparation.”).

5 A scheduling order that provides further substance as to the steps that the defendants may take in responding to the plaintiffs’ supplemental disclosures will issue separately. I will consider the defendants’ request to allocate the costs of this additional briefing and discovery to the plaintiffs at an appropriate time once the merits stage of this litigation concludes.

22 IV. CONCLUSION

For the foregoing reasons, the plaintiffs’ motion for leave to supplement

their expert declarations (Doc. 277) is granted.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

June 14, 2024

cc: Counsel of record

23