REDONDO CONSTRUCTION CORPORATION et al v. PUERTO RICO HIGHWAY AUTHORITY

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
IN RE: 	:
:
REDONDO CONSTRUCTION 	: 	CASE NO. 02-02887 (GAC)
CORPORATION, CORP., 	:
:
Debtor 	: 	CHAPTER 11
___________________________________:
:
REDONDO CONSTRUCTION 	:
CORPORATION, CORP., 	:
:
Plaintiff 	:
:
v. 	: 	ADV. NO. 02-00113
:
PUERTO RICO HIGHWAY 	:
AUTHORITY, 	:
:
Defendant 	:
___________________________________:
DECISION AND ORDER
I. 	Procedural Background
Pending 	before 	this 	Court 	is 	a 	Motion 	In 	Limine 	to 	Exclude
Expert Witness Testimony and Report (Docket #139) filed by Puerto
Rico 	Highway 	Authority 	(“PRHA”) 	and 	an 	Opposition 	(Docket 	#161)
filed by Redondo Construction Corporation (“Redondo”).
A. Procedural Background regarding Discovery
On 	March 	19, 	2002, 	Redondo 	filed 	a 	voluntary 	petition 	under
Chapter 11 of the Bankruptcy Code (Legal Case No. 02-02887, Docket
#1). On September 6, 2002, Redondo filed a complaint against PRHA
for breach of contract and for the collection of monies allegedly
owed for construction work performed, pursuant to six construction
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contracts 	entered 	in 	to 	between 	the 	parties, 	claiming 	a 	total
amount of $14,588,375.36 (Docket #1).
The first issue before the Court was PRHA’s motion to dismiss,
filed 	on 	October 	28, 	2002, 	alleging 	that 	it 	was 	an 	“arm 	of 	the
state” 	and 	that 	the 	Court 	lacked 	jurisdiction 	(Docket 	#6). 	On
December 	6, 	2002, 	Redondo 	served 	PRHA 	with 	the 	first 	set 	of
interrogatories and a request for production of documents (Docket
#10). 	On 	December 	13, 	2002, 	PRHA 	opposed 	the 	commencement 	of 	the
discovery 	proceedings 	(Docket 	#12) 	and 	on 	December 	27, 	2002, 	the
Court stayed the discovery proceedings (Docket #12).
On 	January, 	29, 	2003, 	the 	Court 	denied 	PRHA’s 	motion 	to
dismiss 	in 	a 	Decision 	and 	Order 	(Docket 	#16) 	and 	scheduled 	the
first 	pretrial 	hearing 	for 	March 	25, 	2003. 	PRHA 	sought
reconsideration in a motion to amend judgment (Docket #18).
On 	March 	5, 	2003, 	PRHA 	filed 	an 	urgent 	motion 	to 	postpone
pretrial hearing and requested the stay of the proceedings (Docket
#20). 	Redondo 	filed 	an 	opposition 	(Docket 	#21) 	and 	a 	motion 	for
continuance of the pretrial, scheduled for March 7, 2003 to be set
for March 25, 2003 (Docket #22). On March 25, 2003, at the request
of 	the 	parties, 	the 	pretrial 	hearing 	was 	converted 	to 	a 	status
conference 	and 	the 	Court 	ordered 	that 	the 	stay 	of 	the 	discovery
continue until the motion to postpone the pretrial and to stay the
proceedings was answered by Redondo (Docket #23).
On 	May 	21, 	2003, 	the 	Court 	held 	a 	status 	conference 	(Docket
#35) 	and 	noted 	that 	the 	discovery 	remained 	stayed 	because 	of 	the
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motion 	to 	amend 	judgment 	filed 	by 	PRHA, 	also 	granting 	Redondo
thirty 	days 	to 	respond. 	On 	July 	7, 	2003, 	the 	Court 	scheduled 	a
pretrial 	hearing 	for 	October 	21, 	2003 	and 	ordered 	the 	parties 	to
submit the pretrial report five days prior to the hearing (Docket
#37). 	On 	July 	31, 	2003, 	the 	Court 	motu 	propio 	set 	aside 	the
pretrial 	hearing 	(Docket 	#38) 	and 	then 	scheduled 	another 	status
conference 	hearing 	for 	October 	10, 	2003 	(Docket 	#40). 	On 	October
10, 	2003, 	a 	hearing 	was 	held 	in 	chambers 	wherein 	the 	parties
announced 	the 	possibility 	of 	a 	settlement; 	the 	Court 	ordered 	the
parties 	to 	meet, 	review 	the 	documents 	and 	file 	an 	informative
motion regarding settlement (Docket #41).
On November 18, 2003, the Court held another status conference
hearing (Docket #43), in which it took notice that there were two
matters 	pending: 	the 	denial 	of 	the 	commencement 	of 	the 	discovery
proceedings 	and 	the 	motion 	to 	amend 	judgment 	filed 	by 	PRHA, 	that
were to be referred to chambers. On January 14, 2004, Redondo filed
an urgent motion for resolution of jurisdictional issue or, in the
alternative, for the commencement of the discovery (Docket #44).
On 	February 	3, 	2004, 	the 	Court 	issued 	a 	Decision 	and 	Order
denying 	PRHA’s 	motion 	for 	reconsideration 	regarding 	Decision 	and
Order of January 29, 2003 (Docket #45) and on March 25, 2004, the
Court scheduled a final pretrial hearing for June 8, 2004 (Docket
#47).
On 	May 	3, 	2004, 	Redondo 	filed 	a 	motion 	requesting 	an 	order
entering 	PRHA’s 	default 	(Docket 	#48) 	and 	thereafter, 	on 	May 	5,
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2004, 	PRHA 	filed 	a 	motion 	for 	extension 	of 	time 	to 	answer 	the
complaint (Docket #49). On June 8, 2004, the Court held a pretrial
conference 	and 	granted 	PRHA 	thirty 	days 	to 	answer 	the 	complaint
(Docket 	#50). 	On 	June 	21, 	2004, 	almost 	two 	years 	after 	the
commencement of the present adversary case, PRHA filed the answer
to the complaint (Docket #52).
Finally, 	in 	August 	of 	2004, 	the 	discovery 	proceedings
commenced. 	On 	August 	20, 	2004, 	the 	parties 	exchanged
interrogatories (Dockets #53 and #54). The Court scheduled another
pretrial 	hearing 	for 	January 	25, 	2005 	(Docket 	#55). 	Then, 	on
October 19, 2005, Redondo filed a motion for sanctions against PRHA
for lack of cooperation and for delay (Docket #57), alleging that
PRHA had not answered the interrogatories and had not complied with
the 	initial 	discovery. 	On 	January 	25, 	2005, 	the 	Court 	held 	a
pretrial 	conference 	and 	gave 	five 	days 	to 	PRHA 	to 	answer 	the
interrogatories. Redondo’s motion requesting sanctions against PRHA
was held in abeyance and a new pretrial hearing was scheduled for
May 25, 2005 (Docket #61). On February 4, 2005, PRHA filed for an
extension 	of 	time 	to 	answer 	the 	interrogatories 	and 	the 	Court
granted ten final days (Docket #59).
On February 22, 2005, Redondo filed a motion for elimination
of PRHA’s allegations (Docket #62), asserting that PRHA sent them
a letter informing that they had received the documents requested,
but 	needed 	extra 	time 	to 	examine 	them 	because 	some 	could 	be
considered privileged. Redondo further asserted that PRHA had not
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yet answered the interrogatories. On May 24, 2005, the day before
the pretrial hearing, PRHA filed a motion requesting continuance of
pretrial 	hearing 	or 	to 	convert 	it 	to 	a 	status 	conference 	hearing
(Docket 	#63). 	The 	hearing 	was 	converted 	to 	a 	status 	conference,
Redondo’s motion for elimination of the allegations was withdrawn,
the 	new 	pretrial 	hearing 	was 	scheduled 	for 	September 	7, 	2005 	and
the 	trial 	was 	set 	for 	November 	28 	and 	29, 	and 	December 	1 	and 	2,
2005 (Docket #64).
On 	August 	26, 	2005, 	the 	parties 	filed 	a 	joint 	motion 	to
convert 	pretrial 	hearing 	to 	a 	status 	conference 	hearing 	and
submitted 	a 	final 	discovery 	time 	table 	(Docket 	#68). 	The 	Court
granted said motion and set the deadline to conduct discovery for
December 31, 2005, and the deadline to file dispositive motions for
January 	31, 	2006. 	The 	final 	pretrial 	hearing 	was 	scheduled 	for
February 	3, 	2006 	and 	the 	trial 	was 	moved 	to 	March 	28, 	29, 	30 	and
31, 2006 (Docket #69).
On 	December 	5, 	2005, 	Redondo 	filed 	a 	motion 	requesting
sanctions against PRHA for noncompliance with the discovery and for
orders 	regarding 	payment 	certifications 	(Docket 	#72). 	The 	Court
entered an order to show cause against PRHA, which until today has
not been answered (Docket #73). Then, Redondo filed a second motion
requesting 	sanctions 	and 	for 	noncompliance 	with 	the 	discovery
(Docket 	#76). 	The 	Court 	issued 	another 	order 	confirming 	that 	the
pretrial hearing was scheduled for February 3, 2006 and announced
that 	it 	would 	consider 	Redondo’s 	motion 	requesting 	sanctions
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(Docket #78).
On 	January 	27, 	2006, 	Redondo 	filed 	an 	informative 	motion
stating that it had not been able to communicate with PRHA to file
a joint pretrial report, thus filing only its part of the pretrial
report 	(Dockets 	#79 	and 	#80). 	On 	February 	1, 	2006, 	PRHA 	filed 	a
motion requesting an extension of time to comply with the Court’s
order and requested another continuance of the pretrial hearing or
to convert it to a status conference (Docket #86). Redondo filed an
opposition 	(Docket 	#87). 	On 	February 	3, 	2006, 	the 	Court 	held 	the
hearing 	and 	noted 	that 	this 	was 	the 	fifth 	pretrial 	hearing
continued, that PRHA had failed to comply with discovery, that PRHA
had not prepared its part of the pretrial report and that a motion
for sanctions was still pending against it (Docket #94). The Court
set 	a 	hearing 	for 	March 	1, 	2006, 	to 	determine 	what 	sanctions, 	if
any, were to be imposed against PRHA and ordered Redondo to file a
request for fees and costs due to PRHA’s noncompliance.
On February 17, 2006, PRHA filed an urgent motion for leave to
file 	its 	pretrial 	two 	days 	later 	(Docket 	#91). 	Redondo 	filed 	a
reply 	and 	then 	filed 	its 	part 	of 	the 	pretrial 	report 	again,
alleging its inability to establish communication with PRHA to file
the 	joint 	pretrial 	report 	(Docket 	#93). 	On 	January 	27, 	2006,
Redondo 	filed 	a 	motion 	reiterating 	its 	request 	for 	sanctions
because 	PRHA 	did 	not 	comply 	with 	the 	discovery 	and 	cancelled 	the
meeting 	regarding 	the 	pretrial 	report 	(Docket 	#95). 	Finally, 	on
February 	24, 	2006, 	PRHA 	filed 	its 	part 	of 	the 	pretrial 	report
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(Docket 	#96). 	Redondo 	filed 	a 	Motion 	Joining 	the 	Joint 	Pretrial,
for 	Exclusion 	of 	Expert 	and 	for 	Admissibility 	of 	Documentary
Evidence (Docket #100). Redondo contended that the pretrial report
submitted by PRHA was an exact copy of an expert witness’s report
that 	had 	not 	been 	disclosed, 	and 	asserting 	that 	it 	did 	not 	have
time to meet with PRHA to discuss the stipulations or objections to
PRHA’s part of the pretrial report. Redondo informed that it would
file 	separately 	the 	joint 	pretrial, 	and 	requested 	the 	Court 	to
exclude 	PRHA’s 	newly 	announced 	expert 	and 	those 	experts 	that
Redondo had not been able to depose. Finally, Redondo moved for the
admission of plaintiff’s documentary evidence.
On March 1, 2006, the Court held the pretrial hearing (Docket
#126), in which it ordered the parties to meet and file the joint
pretrial report in two days, and gave notice to the attorneys that
the 	party 	who 	failed 	to 	comply 	would 	be 	subject 	to 	a 	$5,000
sanction 	in 	their 	personal 	capacity 	(Docket 	#126). 	The 	Court
eliminated 	PRHA’s 	expert 	witness 	due 	to 	late 	disclosure, 	ordered
the parties to mark all the evidence and granted the parties five
days 	prior 	to 	the 	trial 	to 	file 	motions 	in 	limine. 	On 	March 	7,
2006, PRHA filed a motion for reconsideration of the Court’s order
excluding 	its 	expert 	witness 	for 	late 	disclosure 	and 	for
noncompliance 	with 	the 	discovery 	(Docket 	#111). 	On 	the 	same 	day,
the parties submitted the joint pretrial report (Docket #112). On
March 	10, 	2006, 	Redondo 	filed 	a 	Motion 	Waiving 	Claim 	and 	to
Separate 	Trial 	on 	Another 	(Docket 	#117) 	and 	on 	March 	14, 	2006 	it
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filed an opposition to PRHA’s motion for reconsideration regarding
the expert witness (Docket #121). Later, PRHA filed an opposition
to Redondo’s motion, requesting the Court to deny a separate trial
or to dismiss with prejudice the cause of action regarding one of
the claims (Docket #128).
On 	March 	20, 	2006, 	Redondo 	filed 	an 	urgent 	motion 	for
continuance of trial (Docket #157) and the next day, PRHA filed an
opposition to the continuance of the trial (Docket #159). The Court
granted the motion for continuance of trial and rescheduled it for
August 	14 	to 	25, 	2006 	(Docket 	#158). 	The 	parties 	met 	and 	filed 	a
joint 	motion 	regarding 	the 	expert 	witness 	report’s 	deadlines,
pending 	depositions 	and 	others 	(Docket 	#167). 	The 	trial 	was
subsequently rescheduled to commence on November 27, 2006.
B. Procedural Background regarding Motion in Limine
On 	March 	16, 	2006, 	PRHA 	filed 	a 	motion 	in 	limine to exclude
any 	untimely 	and 	undisclosed 	expert 	testimony 	and 	report 	(Docket
#139), 	seeking 	to 	eliminate 	Bejamin 	Fernandez 	(“Fernandez”),
Wilfredo 	Martinez 	(“Martinez”), 	and 	Rafael 	Perez 	(“Perez”) 	as
Redondo’s expert witnesses and their reports. As to Martinez, PRHA
contends 	that 	the 	initial 	disclosure 	of 	his 	testimony 	was 	both
untimely 	and 	inadequate 	under 	Federal 	Rules 	of 	Civil 	Procedure
26(a)(2) and 33. Additionally, it contends that Martinez’s report
was 	not 	disclosed 	or 	timely 	provided 	pursuant 	to 	Federal 	Rule 	of
Civil Procedure 26(a)(2). As to Perez, likewise, PRHA contends that
the 	initial 	disclosure 	of 	his 	testimony 	was 	both 	untimely 	and
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inadequate under Rules 26(a)(2) and 33, and likewise the disclosure
of his report. Finally, as to Fernandez’s testimony, PRHA contends
that 	in 	addition 	to 	being 	untimely 	and 	inadequate 	under 	Rules
26(a)(2) and 33, he was identified for the first time as an expert
witness in the proposed pretrial report and the disclosure was not
accompanied by an expert report. PRHA asserts that as a result, it
has not been able to prepare an effective cross-examination of the
experts 	through 	depositions 	or 	otherwise. 	Thus, 	it 	requests 	that
the 	Court 	enter 	an 	order 	striking 	the 	reports 	and 	precluding
Martinez, Perez and Fernandez from testifying at trial.
On 	March 	21, 	2006, 	Redondo 	filed 	an 	opposition 	to 	PRHA’s
motion 	in 	limine 	(Docket 	#161). 	Redondo 	asserts 	that 	as 	to
Martinez’s testimony, the issue is moot because he will not be used
as an expert witness. Redondo also conveyed the difficulties it had
with PRHA’s discovery. Finally, Redondo asserts that as to Perez,
the 	first 	time 	it 	disclosed 	Perez’s 	expert 	witness 	report 	was 	on
April 11, 2005. Redondo avers that on April 11, 2005 it handed PRHA
six 	binders 	full 	of 	documents 	for 	each 	of 	the 	six 	construction
projects, 	each 	one 	including 	the 	calculations 	of 	claims 	and 	an
audited determination of the overhead, prepared by Perez. Redondo
asserts that again, in September 28, 2005, it identified Perez as
an expert witness, when it was confirming the coordination of the
depositions 	to 	be 	taken 	thereafter 	with 	PRHA. 	Thus, 	Redondo
requests that the Court deny PRHA’s motion in limine.
On March 28, 2006, PRHA filed a motion in reply to Redondo’s
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opposition (Docket #168), contending that Perez’s report does not
comply 	with 	Federal 	Rule 	of 	Civil 	Procedure 	26 	and 	thus, 	it 	is
inadequate. 	It 	also 	contends 	that 	Perez’s 	audit 	reports 	are 	not
expert 	reports 	pursuant 	to 	Rule 	26. 	PRHA 	further 	argued 	that 	the
audit reports do not contain a complete statement of all opinions
to 	be 	expressed 	by 	Perez. 	It 	asserts 	that 	the 	report 	merely
provides 	the 	final 	figures 	without 	any 	analysis 	as 	to 	how 	Perez
reached 	those 	figures. 	Therefore, 	PRHA 	concludes 	that 	the 	report
did not constitute a proper expert disclosure pursuant to Rule 26.
On the other hand, PRHA mentions in a footnote that Redondo removed
Mr. 	Fernandez 	from 	the 	witness 	list, 	thus 	the 	issue 	was 	moot.
Finally, PRHA argued that Martinez’s report should be excluded from
being 	used 	at 	trial 	because 	Redondo 	also 	removed 	him 	from 	the
witness list. PRHA requested that the Court exclude both Perez and
Martinez as witnesses and their reports.
On 	March 	30, 	2006, 	the 	Court 	issued 	an 	order 	in 	which 	it
ordered 	Redondo 	to 	show 	cause 	as 	to 	why 	the 	reports 	and 	Perez’s
testimony 	should 	not 	be 	excluded 	based 	on 	its 	failure 	to 	comply
with 	Federal 	Rule 	of 	Civil 	Procedure 	26(a)(2)(B). 	The 	Court 	also
ordered 	Redondo 	to 	confirm 	whether 	Martinez 	was 	removed 	from 	the
witness list and if his preliminary report would not be offered as
evidence in support of its claim (Docket #174). On April 10, 2006,
Redondo 	filed 	a 	motion 	in 	compliance 	with 	order 	regarding
withdrawal of witness, informing that Martinez would not be used as
a witness and that it will not offer his report as evidence (Docket
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#189).
On April 24, 2006, Redondo filed a memorandum of law showing
cause 	(Docket 	#196). 	Redondo 	asserts 	that 	Perez’s 	report 	was
announced 	with 	enough 	time 	before 	trial 	and 	that 	PRHA 	failed 	to
conduct any discovery in its regard. Furthermore, it asserts that
the Court admitted Perez’s report during the pretrial hearing held
on 	March 	1, 	2006. 	Redondo 	also 	asserts 	that 	its 	witnesses 	and
documentary 	evidence 	were 	admitted 	by 	the 	Court 	as 	a 	sanction
imposed to PRHA for its non-compliance with the discovery. Finally,
it 	contends 	that 	PRHA 	has 	shown 	no 	reasons 	why 	it 	should 	be
relieved from such sanctions imposed by the Court.
Furthermore, 	Redondo 	contends 	that 	Perez’s 	report 	should 	be
admitted because it complies with the elements of an expert report
under Rule 26, containing a complete statement of all opinions to
be expressed, its basis, reasons and its conclusions. Redondo avers
that the admission of the report will cause no harm to PRHA, since
it was disclosed well in advance as to its contents and PRHA still
has time to depose Perez before trial. Redondo also contends that
if 	Perez 	is 	considered 	an 	expert 	witness, 	but 	his 	report
insufficient, the same should be admitted because PRHA has suffered
no harm. Redondo avers that it should be given the opportunity to
conform 	the 	report 	to 	Rule 	26, 	since 	there 	is 	still 	time 	before
trial to conduct discovery in its regard. Redondo asserts that it
handed 	PRHA 	Perez’s 	curriculum 	vitae 	and 	it 	informed 	as 	to 	his
compensation. Redondo asserts that the lateness for the disclosure
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of 	the 	information 	was 	due 	to 	its 	financial 	situation 	because 	it
could 	not 	afford 	the 	expert 	witness 	fees, 	preventing 	Redondo’s
attorney from working with Perez.
In 	the 	alterative, 	Redondo 	contends 	that 	assuming 	that 	the
report 	does 	not 	comply 	with 	Rule 	26, 	Perez 	may 	still 	testify 	in
connection to his calculations under Federal Rule of Evidence 701,
alleging 	that 	Perez 	is 	a 	hybrid 	expert 	witness 	with 	factual
knowledge, who is not required to submit a report under Rule 26.
Redondo 	asserts 	that 	PRHA’s 	contention 	goes 	to 	the 	form 	and
not 	the 	content 	of 	Perez’s 	report, 	because 	its 	content 	had 	been
revealed 	long 	before, 	thus 	PRHA 	will 	suffer 	no 	harm. 	On 	the
contrary, 	Redondo 	asserts 	that 	if 	the 	report 	is 	not 	admitted 	it
will be detrimental to Redondo because it will not be able to prove
its overhead, a major portion of its claims. Finally, it maintains
that 	if 	the 	report 	has 	any 	deficiencies 	it 	was 	not 	done 	in 	bad
faith. 	Thus, 	it 	asserts 	that 	the 	Court 	should 	give 	Redondo 	an
opportunity to either have the same admitted or give time to modify
it. 	Redondo 	requests 	that 	the 	Court 	deny 	PRHA’s 	motion 	in 	limine
and allow Perez’s testimony and his report.
Between the filing of the motions in limine and the orders to
show 	cause, 	the 	parties 	also 	filed 	motions 	for 	sanctions 	under
Federal Rule of Bankruptcy Procedure 9011. Redondo filed the first
motion on March 31, 2006 (Docket #175) and the Court ordered PRHA
to 	reply 	(Docket 	#182). 	PRHA 	replied 	on 	March 	12, 	2006 	(Docket
#190). 	The 	Court 	held 	a 	hearing 	on 	May 	1, 	2006, 	at 	which 	time 	it
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scheduled 	the 	trial 	to 	commence 	on 	November 	27, 	2006. 	The 	Court
took the motions in limine under advisement (Docket #198).
II. 	Discussion
Federal 	Rule 	of 	Civil 	Procedure 	26 	governs 	the 	provisions
regarding discovery in civil cases, made applicable in bankruptcy
by Fed. R. Bankr. P. 7026. Specifically, Rule 26(a)(2)(B) regulates
the disclosure of an expert witness’s testimony and their reports,
stating:
Except as otherwise stipulated or directed by
the court, this disclosure shall, with respect
to 	a 	witness 	who 	is 	retained 	or 	specially
employed 	to 	provide 	expert 	testimony 	in 	the
case 	or 	whose 	duties 	as 	an 	employee 	of 	the
party 	regularly 	involve 	giving 	expert
testimony, be accompanied by a written report
prepared and signed by the witness. The report
shall 	contain 	a 	complete 	statement 	of 	all
opinions 	to 	be 	expressed 	and 	the 	basis 	and
reasons 	therefor; 	the 	data 	or 	other
information 	considered 	by 	the 	witness 	in
forming the opinions; any exhibits to be used
as 	a 	summary 	of 	or 	support 	for 	the 	opinions;
the qualifications of the witness, including a
list 	of 	all 	publications 	authored 	by 	the
witness 	within 	the 	preceding 	ten 	years; 	the
compensation 	to 	be 	paid 	for 	the 	study 	and
testimony; and a listing of any other cases in
which 	the 	witness 	has 	testified 	as 	an 	expert
at trial or by deposition within the preceding
four years.
Fed. R. Civ. P. 26(a)(2)(B) (emphasis ours). Moreover, Federal Rule
of 	Civil 	Procedure 	26(a)(2)(C), 	made 	applicable 	in 	bankruptcy 	by
Fed. 	R. 	Bankr. 	P. 	7026, 	specifies 	the 	time 	period 	within 	which
parties shall submit the evidence regarding the expert witnesses.
In 	pertinent part, it states that:
disclosures shall be made at the times and in
the 	sequence 	directed 	by 	the 	court. 	In 	the
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absence of other directions from the court or
stipulation 	by 	the 	parties, 	the 	disclosures
shall 	be 	made 	at 	least 	90 	days 	before 	the
trial date or the date the case is to be ready
for trial.
Fed. 	R. 	Civ. 	P. 	26(a)(2)(C). 	Failure 	to 	disclose 	information 	or
failure to comply with Rule 26(a) carries consequences as set out
in 	Federal 	Rule 	of 	Civil 	Procedure 	37(c)(1), 	made 	applicable 	in
bankruptcy by Fed. R. Bankr. P. 7037, 	which 	states:
A party that without substantial justification
fails to disclose information required by Rule
26(a) 	or 	26(e)(1), 	or 	to 	amend 	a 	prior
response 	to 	discovery 	as 	required 	by 	Rule
26(e)(2), 	is 	not, 	unless 	such 	failure 	is
harmless, 	permitted 	to 	use 	as 	evidence 	at 	a
trial, 	at 	a 	hearing, 	or 	on 	a 	motion 	any
witness 	or 	information 	not 	so 	disclosed. 	In
addition 	to 	or 	in 	lieu 	of 	this 	sanction, 	the
court, 	on 	motion 	and 	after 	affording 	an
opportunity 	to 	be 	heard, 	may 	impose 	other
appropriate 	sanctions. 	In 	addition 	to
requiring 	payment 	of 	reasonable 	expenses,
including 	attorney's 	fees, 	caused 	by 	the
failure, 	these 	sanctions 	may 	include 	any 	of
the actions authorized under Rule 37(b)(2)(A),
(B), 	and 	(C) 	and 	may 	include 	informing 	the
jury of the failure to make the disclosure.
Fed. R. Civ. P. 37(c)(1)(emphasis ours).
In Santiago v. Laboratorio Clinico y de Referencia del Este,
2006 	WL 	2255434 	(1st 	Cir. 	2006), 	defendants 	filed 	a 	motion 	in
limine 	alleging 	that 	the 	plaintiff 	failed 	to 	timely 	disclose 	its
expert 	witness 	and 	alleging 	that 	the 	plaintiff 	filed 	a 	belated
disclosure, 	consisting 	of 	a 	one 	page 	report 	together 	with 	the
curriculum 	vitae. 	The 	First 	Circuit 	found 	deficiencies 	in 	the
report 	stating 	that: 	“[t]he 	one-page 	statement 	of 	the 	expert's
opinion, submitted to the court more than one month later, did not
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by any means satisfy her obligation to provide an expert report.”
Santiago v. Laboratorio Clinico y de Referencia del Este, 2006 WL
2255434 at 4. The First Circuit described the report as consisting
of 	two 	conclusory 	paragraphs 	and 	found 	among 	other 	deficiencies,
that it did not contain a list of the doctor’s publications, it did
not 	spell 	out 	the 	compensation 	arrangements 	and 	it 	did 	not
enumerate 	the 	cases 	in 	which 	the 	expert 	witness 	had 	testified 	as
set 	forth 	in 	Fed. 	R. 	Civ. 	P. 	26(a)(2). 	The 	court 	concluded 	that
these were significant omissions and granted the motion in limine
excluding the report. Id. See also Pena-Crespo v. Puerto Rico, 408
F.3d 10, 13-14 (1st Cir. 2005). The First Circuit also noted that
the 	discovery 	violations 	were 	patent 	because 	the 	plaintiff’s
filings were consistently out of time and the record “was replete
with instances in which the plaintiff refused to work cooperatively
with 	the 	defendants 	in 	creating 	an 	efficient 	discovery 	process.”
Santiago v. Laboratorio Clinico y de Referencia del Este, 2006 WL
2255434 at 5.
The 	First 	Circuit 	also 	held 	that 	the 	preclusion 	of 	expert
witness 	testimony 	is 	not 	mechanical 	and 	that 	in 	passing 	upon 	a
district court's decision to order preclusion, an appellate court
should consider an array of factors. Id. at 4 (citing Macaulay v.
Anas, 	321 	F.3d 	45 	(1st 	Cir. 	2003)). 	Among 	the 	factors 	to 	be
considered, it mentioned:
“the 	history 	of 	the 	litigation, 	the
proponent's need for the challenged evidence,
the 	justification 	(if 	any) 	for 	the 	late
disclosure, 	and 	the 	opponent's 	ability 	to
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overcome its adverse effects.
Santiago v. Laboratorio Clinico y de Referencia del Este, 2006 WL
2255434 at 4 (quoting 	Macaulay v. Anas, 321 F.3d at 51). Likewise,
in Macaulay v. Anas, the First Circuit upheld the district court’s
decision to eliminate the plaintiff’s expert witness because of the
belated disclosure of the report, after the discovery deadline and
during the pre-trial hearing. The First Circuit granted the motion
in 	limine 	and 	dismissed 	the 	malpractice 	case 	for 	failure 	to
prosecute. 	Thus, 	the 	First 	Circuit 	Court 	of 	Appeals 	has 	been
consistent in affirming the lower courts’s decisions in precluding
an expert witness or its report when the party has failed to comply
with 	the 	discovery 	orders, 	the 	deadlines 	and 	the 	requisites 	set
forth in Fed. R. Civ. P. 26(a)(2)(B).
On 	the 	other 	hand, 	the 	First 	Circuit 	in 	Gagnon 	v. 	Teledyne
Princeton, Inc., 437 F3d 188 (1st Cir. 2006) had the opportunity to
discuss the concept of “harmlessness” as referenced in Fed. R. Civ.
P. 	37(c)(1), 	which 	the 	First 	Circuit 	describes 	as 	the 	smaller
escape 	valve. 	“[T]his 	is 	whether 	the 	late 	disclosure, 	though 	not
justified, was nonetheless harmless.” Gagnon v. Teledyne Princeton,
Inc., 	437 	F3d 	at 	197. 	The 	First 	Circuit 	citing 	the 	Advisory
Committee 	notes 	to 	the 	1993 	amendments 	to 	Rule 	37(c)(1), 	stated:
“that the harmlessness provision is intended ‘to avoid unduly harsh
penalties 	in 	a 	variety 	of 	situations.’” 	Id. 	at 	197. 	Then 	it
mentioned 	as 	illustrative 	examples 	of 	harmlessness: 	“late
disclosures 	of 	a 	potential 	witness 	known 	to 	all 	parties, 	a 	trial
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witness already listed by the adverse party, or a witness on behalf
of a (pro se) litigant ignorant of the requirement”. Id. at 197.
The case law discussed, supra, has at least one common thread,
that 	is: 	the 	courts 	have 	been 	willing 	to 	preclude 	the 	expert
witness of the party, when it is clear from the record, that such
party has failed to comply with the discovery orders of the court,
or not disclosed the expert or his report in a timely fashion.
This 	adversary 	case 	has 	been 	delayed 	during 	the 	last 	four
years 	with 	discovery 	issues 	and 	after 	five 	continuances 	of 	the
pretrial 	hearing, 	the 	case 	is 	now 	set 	for 	trial 	starting 	on
November 	27, 	2006. 	This 	Court 	has 	detailed 	herein-before 	the
extensive procedural history of the discovery and concludes, that
the 	party 	that 	has 	failed 	primarily 	to 	comply 	with 	the 	discovery
orders, PRHA, is the same party that filed the motion in limine.
PRHA 	requests 	that 	the 	Court 	preclude 	Perez’s 	testimony 	and
his expert witness report (a) for Redondo’s failure to disclose the
same 	in 	a 	timely 	manner 	and 	(b) 	alleging 	that 	the 	report 	itself
fails 	to 	comply 	with 	Rule 	26(a)(2)(B). 	The 	record 	shows 	that
Redondo has complied with this Court’s orders. Redondo disclosed in
a timely fashion Perez’s expert witness report in April of 2005. It
filed 	a 	pretrial 	report 	on 	both 	occasions. 	It 	also 	complied 	with
the 	production 	of 	documents 	in 	a 	timely 	fashion 	and 	has 	made
available 	to 	PRHA 	its 	expert 	witness 	before 	the 	pretrial 	reports
were 	submitted. 	To 	the 	contrary, 	PRHA 	has 	repeatedly 	failed 	to
comply 	with 	the 	discovery 	requests 	and 	Redondo 	has 	sought 	the
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Court’s assistance for the production of documents and sanctions on
numerous occasions.
It 	is 	uncontested 	that 	Perez’s 	expert 	witness 	report 	was
available to PRHA on April 11, 2005. Thus, PRHA had the report in
a timely manner for it to conduct discovery. As for the report, if
a harmless part is missing, such as Perez’s curriculum vitae, the
list 	of 	cases 	in 	which 	he 	has 	testified 	in 	a 	trial 	or 	his
compensation, the Court will grant Redondo ten days to supplement
the same in order to fully comply with the requirements set forth
in 	Fed. 	R. 	Civ. 	P. 	26(a)(2)(B). 	As 	for 	the 	report’s 	content, 	the
Court 	finds 	that 	it 	adequately 	complies 	with 	Fed. 	R. 	Civ. 	P.
26(a)(2)(B).
ORDER
IT IS ORDERED that the motion in limine (Docket #139) filed by
PRHA shall be, and it hereby is, DENIED.
IT 	IS 	FURTHER 	ORDERED 	that 	the 	cross 	motions 	for 	sanctions
pursuant to Federal Rule of Bankruptcy Procedure 9011 shall be, and
hereby 	are, 	DENIED. 	The 	attorneys 	for 	both 	parties, 	however, 	are
hereby admonished and directed to behave ethically and cordially to
avoid the unnecessary delays caused by contrary behavior.
SO ORDERED.
In San Juan, Puerto Rico, this 19th day of September, 2006.
/s Gerardo A. Carlo-Altieri
_________________________________________
GERARDO A. CARLO-ALTIERI
Chief, U.S. Bankruptcy Judge
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