Prusin v. Canton's Pearls, LLC, 1:16-cv-00605

Background

Prusin sued Canton’s Pearls, LLC (Canton Dockside) and its owner under the FLSA and state law alleging unpaid wages; the case proceeded through fact and expert discovery.
The court set deadlines: defendants’ expert disclosures due Oct 1, 2016 (moved to Oct 3); defendants timely produced an expert report by Anthony Pelura on Oct 3, 2016.
Plaintiff produced rebuttal expert reports (Heiserman and Hayman) on May 1, 2017 arguing service charges are not wages; Plaintiff also produced a Hayman supplement on May 15.
Defendants produced a supplemental expert report from Pelura on May 19, 2017 (one week before close of discovery) offering new analyses that treated mandatory service charges as part of gross receipts and increased the alleged wage shortfall.
Plaintiff moved to exclude Pelura’s supplemental report as improper supplementation under Rule 26(e) and to exclude the original report as untimely/incomplete; Defendants defended timeliness and argued supplementation was permissible.
The court denied exclusion but allowed limited relief: 30 days to depose Pelura and/or request further information, 21 days for Plaintiff to supplement his expert disclosures, and a schedule adjustment for Plaintiff’s summary-judgment reply; no additional discovery for Defendants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pelura's original report was untimely or incomplete	Prusin: original report missed deadline and lacked required detail	Canton: report filed Oct 3 (deadline fell on weekend) and satisfied Rule 26(a)(2)(B) requirements	Held: original report was timely and sufficiently complete under Rule 26(a)(2)(B)
Whether Pelura's supplemental report was proper under Rule 26(e)	Prusin: supplemental report added new opinions and analyses based on previously available materials, so it is improper supplementation	Canton: supplemental report clarified and provided supporting detail for service-charge defense; any harm can be cured by deposition	Held: supplemental report went beyond permissible supplementation (it added new opinions based on available info) but exclusion was not warranted under Rule 37(c) given lack of prejudice that could not be cured
Whether exclusion under Rule 37(c) is required or relief by schedule modification is appropriate	Prusin: exclusion is appropriate because prejudice cannot be cured and reopen would disrupt schedule	Canton: limited reopening to depose Pelura cures prejudice without disruption; evidence is important to merits	Held: Court denied exclusion and instead granted limited schedule extensions to cure prejudice (deposition and supplementation deadlines)
Appropriate remedy for improper supplementation	Prusin: strike supplemental report	Canton: limited extension for Plaintiff to respond and depose; no further discovery for Defendants	Held: limited extension (30-day deposition window, 21 days to supplement, and adjusted MSJ reply) instead of preclusion

Key Cases Cited

Osunde v. Lewis, 281 F.R.D. 250 (D. Md. 2012) (Rule 26 expert report content requirements)
EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013) (supplementation cannot be used to belatedly produce material expert opinions)
Campbell v. United States, 470 Fed. Appx. 153 (4th Cir. 2012) (limitations on using Rule 26(e) to add new expert opinions)
Southern States Rack & Fixture v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir. 2003) (factors to assess harmlessness/substantial justification under Rule 37)
Bresler v. Wilmington Trust Co., 855 F.3d 178 (4th Cir. 2017) (Rule 26(e) supplementation narrow scope: correcting inaccuracies or adding information not previously available)