United States District Court, S.D. Mississippi, Eastern Division
BURROUGHS DIESEL, INC. PLAINTIFF
THE TRAVELERS INDEMNITY COMPANY OF AMERICA DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons provided below, the Court grants in part and
denies in part Travelers' Motion to Strike 
an affidavit from Plaintiff's expert, Dr. Fernando
Lorenzo, and the Court grants in part and denies in
part Travelers' Motion to Exclude  the
testimony of Plaintiff's expert, Dr. Fernando Lorenzo.
an insurance coverage dispute arising from a hydrochloric
acid (“HCl”) spill. On October 14, 2016,
approximately 5, 300 gallons of HCl leaked from a storage
tank on property adjacent to that owned by Plaintiff,
Burroughs Diesel, Inc. Plaintiff alleges that the spill
created a cloud of HCl vapor that traveled to and engulfed
its property for hours, causing extensive damage to
buildings, vehicles, inventory, tools, machines, and
time of the spill, Plaintiff was insured under a property
insurance policy issued by Defendant, Travelers Indemnity
Company of America. Plaintiff filed a claim shortly after the
spill. On October 26, 2016, Travelers' engineer
investigated the damage to Plaintiff's facilities and
property. One week later, the adjuster sent Plaintiff an
e-mail denying the claim, citing the policy's pollution
exclusion. Over the next year or so, Plaintiff continued to
request that Travelers pay the claim, and Travelers continued
to deny it.
filed this suit against Travelers, claiming that Travelers
wrongfully denied coverage, and that it failed to fully and
timely investigate the claim. Plaintiff asserted the
following claims: breach of contract, breach of the duty of
good faith and fair dealing, and tortious breach of contract.
Plaintiff seeks an award of benefits under the policy,
punitive damages, attorney's fees, and interest.
Travelers filed two evidentiary motions, which the Court now
Motion to Strike Affidavit 
filed a Motion to Strike  an affidavit [116-4] from
Plaintiff's expert, Dr. Fernando Lorenzo, presented in
support of Plaintiff's response  to Traveler's
Motion to Exclude  the testimony of Plaintiff's
experts. Although Travelers contends that the entire
affidavit constitutes new, previously undisclosed expert
testimony, it only addressed several specific topics from the
Side Panels' Loss of Useful Life
Travelers contends that Lorenzo articulated a new basis for
his opinion that the painted side panels on Plaintiff's
metal buildings had lost 50% of their useful life. In the
affidavit, he stated:
It is also my opinion that 50% of the protective baked-on
enamel painted coating on the steel side panels of the 10
buildings was reduced due to the acid exposure. The baked-on
enamel paint is recognized as providing corrosion protection
by the Majestic Steel publication . . ., but is less
resilient to corrosion than galvanized zinc coatings. As
explained in my deposition . . ., my original 50% metal
reduction calculation (with a thicker coating) reasonably
reflects the estimated 50% amount of paint loss in the
protective enamel paint coatings on the side panels.
Exhibit 4 to Response at 4-5, Burroughs Diesel, Inc. v.
Travelers Ind. Co. of Am., No. 2:18-CV-48-KS-MTP
(S.D.Miss. July 19, 2019), ECF No. 116-4. Lorenzo cited two
PDL Handbooks in support of this opinion. Id. at 5
his deposition, Lorenzo also testified that 50% of the paint
on the metal buildings' side panels had been corroded.
Exhibit BB to Motion for Summary Judgment at 48,
Burroughs Diesel, Inc. v. Travelers Ind. Co. of Am.,
No. 2:18-CV-48-KS-MTP (S.D.Miss. June 17, 2019), ECF No.
108-28. When directly asked, Lorenzo stated that the only
basis for this opinion was an article from a do-it-yourself
home repair website. Id. at 48-49. When discussing
the paint on the side panels, he made no mention of a
Majestic Steel publication or PDL Handbooks. Therefore, the
Court concludes that Lorenzo's citation of these sources
as support for his opinion regarding the loss of useful life
in the metal buildings' side panels is new testimony,
provides that “a party must disclose to the other
parties the identity of any witness it may use at trial to
present” expert testimony. Fed.R.Civ.P. 26(a)(2)(A).
“Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written report -
prepared and signed by the witness - if the witness is one
retained or specially employed to provide expert testimony in
the case . . . .” Fed.R.Civ.P. 26(a)(2)(B). “A
party must make these disclosures at the times and in the
sequence that the court orders.” Fed.R.Civ.P.
26(a)(2)(D). Local Rule 26 provides that a “party must
make full and complete disclosure as required by Fed.R.Civ.P.
26(a) and L.U.Civ.R. 26(a)(2)(D) no later than the time
specified in the case management order.” L.U.Civ.R.
“[t]he parties must supplement these disclosures when
required under Rule 26(e).” Fed.R.Civ.P. 26(a)(2)(E).
“[A] party is required to supplement its expert
disclosures if the court so orders or if the party learns
that in some material respect the information disclosed 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.”
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
Inc., 73 F.3d 546, 570 n. 42 (5th Cir. 1996) (quoting
Fed.R.Civ.P. 26(e)(1)). “[T]he party's duty to
supplement extends both to information included in the report
and to information given during the expert's deposition.
Any additions or changes to this information must be
disclosed by the time the party's pretrial disclosures
under Rule 26(a)(3) are due.” Fed.R.Civ.P. 26(e)(2).
“Unless the court orders otherwise, ” pretrial
disclosures must be made at least thirty days before trial.@
Fed.R.Civ.P. 26(a)(3). Local Rule 26 provides that a
“party is under a duty to supplement disclosures at
appropriate intervals under Fed.R.Civ.P. 26(e) and in no
event later than the discovery deadline established by
the case management order.” L.U.Civ.R. 26(a)(5)
if Plaintiff wanted to supplement the information provided in
Lorenzo's expert report and deposition, it was required
to do so by the discovery deadline of May 31, 2019.
See Amended Case Management Order, Burroughs
Diesel, Inc. v. Travelers Ind. Co. of Am., No.
2:18-CV-48-KS-MTP (S.D.Miss. Nov. 8, 2018), ECF No. 37. Here,
Plaintiff first disclosed Lorenzo's reliance on the
Majestic Steel publication and PDL Handbooks to support his
opinion regarding the side panels' loss of useful life on
July 19, 2019, in response to Travelers' motion to
exclude Lorenzo's testimony. See Response to
Motion to Exclude, Burroughs Diesel, Inc. v. Travelers
Ind. Co. of Am., No. 2:18-CV-48-KS-MTP (S.D.Miss. July
19, 2019), ECF No. 116. Therefore, the new testimony was not
provides: “If 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, at a hearing, or at trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). When determining
whether to strike an expert's testimony for a party's
failure to timely disclose it, the Court considers the
(1) the importance of the witnesses' testimony;
(2) the prejudice to the opposing party of allowing the
witnesses to testify;
(3) the possibility of curing such prejudice by a
continuance; and (4) the explanation, if any, for the
party's failure to comply with the discovery order.
Sierra Club, 73 F.3d at 572; see also Reliance
Ins. Co. v. La. Land & Exploration Co., 110 F.3d
253, 257 (5th Cir. 1997).
Court will assume that the proposed testimony is important,
but admitting it at this late stage of the case would be
prejudicial to Travelers. Lorenzo cited the additional
sources in response to Travelers' motion to exclude his
testimony for, among other purported reasons, lack of
support. Travelers has not had a chance to cross-examine
Lorenzo concerning the new sources, to investigate them
before filing its dispositive motions, or to acquire a
rebuttal opinion from its own expert. There is no time to
cure the prejudice, because the pretrial conference is
imminent. Finally, Plaintiff has not provided any explanation
for its failure to timely disclose these sources.
the Court concludes that Lorenzo's late citation of these
additional sources in support of his opinions regarding the
side panels' loss of useful life should be excluded. The
Court strikes sub-paragraph (C) of Section 3 of Lorenzo's
affidavit. See Exhibit 4 [116-4], at 4-5. Plaintiff
is not allowed to rely on this evidence or testimony in
support of or response to a motion, at a hearing, or at
Total Loss of Remaining Useful Life
Travelers argues that Lorenzo asserted a new opinion
regarding the total loss of remaining useful life for
Plaintiff's metal ...