Christiansen v. Syverson

516 F.Supp.3d 1151

Jack CHRISTIANSEN and Marie Christiansen, Plaintiffs,

v.Thane SYVERSON, Rebekah Syverson, and Does 1-10, Defendants.

3:19-cv-365-DWM

United States District Court, D. Idaho.

Signed February 2, 2021

Gregory Michael George, MacOmber Law, PLLC, Coeur d'Alene, ID, Paul Thomas Clark, Clark & Feeney, Lewiston, ID, for Plaintiffs.

Marcus E. Johnson, Ramsden, Marfice, Ealy & De Smet, LLP, Coeur D Alene, ID, Michael A. Ealy, Ramsden, Marfice, Ealy & De Smet, LLP, Coeur d'Alene, ID, for Defendants Thane Syverson, Rebekah Syverson.

Marcus E. Johnson, Ramsden, Marfice, Ealy & De Smet, LLP, Coeur D Alene, ID, for Defendant Does 1-10.

OPINION and ORDER

Donald W. Molloy, District Judge

This fraud action arises out of a real property disclosure statement. In 2010, Plaintiffs Jack and Marie Christiansen purchased a property at 323 Barley Drive in Lenore, Idaho (the "Property"). The Property is approximately twenty (20) acres with a refurbished farmhouse. In September 2017, the Christiansens were performing house repairs and discovered vermiculite in the attic, which later tested positive for asbestos. Further investigation uncovered asbestos-contaminated construction remnants from a previous house remodel, performed by Defendants Thane and Rebekah Syverson. The Syversons, however, had completed a disclosure statement averring there was no asbestos or other hazardous substance on or in proximity to the Property. (See Doc. 1 at 28–31.)

The case is set for jury trial on March 22, 2021. (Doc. 25.) The parties seek to limit expert testimony. (Docs. 23, 28.) The motions are addressed in turn.

ANALYSIS

I. The Christiansens’ Motion re Bruce C. Jolicoeur (Doc. 23)

On September 11, 2020, the Syversons served a timely expert disclosure and report for Bruce Jolicoeur, a property appraisal and evaluation professional. (Doc. 23-1 at ¶ 7; id. at 4–17.) Then, on October 22, the Christiansens served supplemental discovery responses, disclosing additional documents and information about asbestos abatement not previously available. (Id. at 19–71.) The Syversons then provided the Christiansens with a supplemental report for Mr. Jolicoeur, dated November 18, 2020. (Doc. 23-2 at ¶ 4; id. at 9–74.)¹

The Christiansens seek to limit Jolicoeur's testimony in two ways. First, they argue that he should be limited to the matters disclosed in his timely September 11 disclosure or those "strictly related" to the Christiansens’ subsequent October 22 supplemental discovery responses. Second, they argue he should be prohibited from offering any testimony related to information obtained from Michael Cooper or Industrial Hygiene Resources. Their requested relief is granted as to the untimely disclosure and granted in part as to reference to Cooper.

A. November 18 report

As discussed in the Court's previous order on expert testimony, (see Doc. 21), parties are required to make their expert disclosures at the time and in the manner ordered by the Court, Goodman v. Staples The Office Superstore, LLC , 644 F.3d 817, 827 (9th Cir. 2011). If a party fails to properly disclose this information, the party cannot use the non-disclosed information at trial "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1) ; Yeti by Molly, Ltd. v. Deckers Outdoor Corp. , 259 F.3d 1101, 1106 (9th Cir. 2001). The parties were reminded of this potential sanction in the Scheduling Order, which states: "An inadequate report or disclosure may result in exclusion of the expert's opinions at trial even though the expert has been deposed." (Doc. 14 at ¶ 11(c).)

The Christiansens argue that the November 18 report includes a "host of information" that is neither included in Jolicoeur's September 11 report nor responsive to the Christiansens’ supplemental discovery responses. More specifically, it contains:

- Detailed analysis of the local (North Central Idaho) economy and real estate market;

- Photographs and descriptions of the [Christiansens]’ home and property;

- Discussion of four (4) purportedly comparable sales;

- Discussion of conversations Mr. Jolicoeur states he had with several area realtors;

- An analysis of the impact on property values of asbestos siding and vermiculite;

- An appraisal value of [the Christiansens]’ property as of Jack Christiansen's April 2010 purchase[;] and

- An estimate of the asbestos’ impact on the property value as of April 2010.

(Doc. 23 at 4.) In response, the Syversons argue that Jolicoeur's September 11 report contained references to all the above information, (see Doc. 23-1 at 7), but simply did not contain the additional documents and photographs provided in the November 18 report. The Syversons also argue that the Christiansens’ subsequent abatement efforts "dramatically alter[ed] the scope of the subject property's valuation and the landscape of this litigation." (Doc. 26 at 5.)

A comparison of the two disclosures and reports demonstrates a significant discrepancy. While the expert disclosures are almost identical, (compare Doc. 23–1 at 5–9 with Doc. 23–1 at 9-14), and both reports contain the September 11 five-page letter, (compare Doc. 23-1 at 11–17 with Doc. 23-2 at 16–22), the November 18 report includes a 50-page Appraisal Report, (see Doc. 23-2 at 24–74). Based on the current record, it appears that this 50-page appraisal was not disclosed to the Christiansens in any form until November 18. (But see id. at 25 (Jolicoeur stating that he initially drafted an appraisal report on September 23, 2020).)

In his appraisal, Jolicoeur valued the property as of April 2010 both with and without knowledge of the presence of asbestos and vermiculite. (See id. at 34.) He ultimately concludes that the difference in market value as of that date was $11,000. (See id. at 66–67.) Because the crux of the report is the Property's value ten years ago, it contains only three references to the Christiansens’ October 2020 abatement efforts. (See id. at 51, 62, 66.) The remainder of the information was either known to Jolicoeur or could reasonably have been known to him prior to September 11. It therefore should have been disclosed by that date and the Syversons present no argument for why it was not. And to say that the information was incorporated by reference in the September 11 report ignores the explicit requirements of Rule 26(a)(2)(B)(i)–(iii) of the Federal Rules of Civil Procedure.

Based on the above, Jolicoeur's November 18 Appraisal Report is excluded in its entirety. While this is more relief than the Christiansens request, it is unclear how the discrete references to the October 2020 abatement efforts could be presented without opening the door to the rest of the report.

B. Testimony related to Cooper or Industrial Hygiene Resources

On July 22, 2020, the Syversons disclosed Cooper as a liability expert in the case, specializing in environmental health and safety matters. (See Doc. 17-1 at 16–29.) But the Court excluded Cooper from testifying as a liability expert because his disclosure did not comply with Rule 26(a)(2)(B). (Doc. 21.) Nonetheless, both Jolicoeur's September 11 report and November 18 report contain references to either Cooper or his company, Industrial Hygiene Resources. The expert disclosures state that Jolicoeur "considered information discovered ... in conversations" with Cooper and others in reaching his conclusions. (See Doc. 23-1 at 7; Doc. 23-2 at 11.) The September 11 report then states:

Industrial Hygiene Resources averred that:

- If left in-place and undisturbed, the vermiculite posed no health hazard;

- The asbestos siding is not friable and posed no health hazard;

- The buried construction materials posed no health hazard as long as they are left undisturbed;

- The vermiculite, asbestos siding and the buried materials would not create a concern sufficient to cause a government agency, such as the Environmental Protection Agency to seek action[; and]

- The removal and remediation of the vermiculite was thorough and professional; the likelihood of residual friable vermiculite is very low[.]

(Doc. 23-1 at 12.) The November 18 report restates several of Cooper's observations and opinions, specifically focusing on whether the undisturbed materials posed a threat and/or needed to be removed. (Doc. 23-2 at 64, 66.) The Christiansens "request that this Court prohibit [the Syversons] from offering any testimony by Mr. Jolicoeur based on or related to any information obtained from" Cooper or his business. (Doc. 23 at 6.)

The Rules of Evidence explicitly contemplate an expert's reliance on inadmissible information:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Fed. R. Evid. 703. Accordingly, a court must consider first, "whether the facts are of a type reasonably relied on by experts in a particular field" and second, "whether the probative value of the underlying data substantially outweighs its prejudicial effect." Turner v. B.N.S.F. Ry. Co. , 338 F.3d 1058, 1061 (9th Cir. 2003). This analysis becomes more complicated, however, when the otherwise inadmissible evidence is the observations and opinions of a previously excluded, independent expert. While "it is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert," an expert cannot simply act as a "mouthpiece" for an expert of a different specialty. Dura Auto. Sys. of Ind., Inc. v. CTS Corp. , 285 F.3d 609, 613–14 (7th Cir. 2002).

1. Reasonable Reliance

When...