I. BACKGROUND

A. The Traverses’ Claims

The Technology Park X Limited Partnership (“Tech Park X”) is a limited partnership, created by the Tech Park X Limited Partnership Agreement (“LP Agreement”) in which the Traverses hold a 38 percent share, and defendants The Gutierrez Company (“TGC”), Arturo J. Gutierrez (“Arturo”), and Arthur J. Gutierrez (“Arthur”), among others, hold smaller stakes. Amended Complaint ¶ 12. TGC serves as the General Partner of Tech Park X and is responsible for the management of Tech Park X. Id. at ¶ 22.

In this action, the Plaintiffs allege that the Defendants improperly inflated Tech Park X's operating expenses and maintenance expenses through inflated invoices. Id. at ¶ 27. They also allege that the Defendants caused Tech Park X to enter into contracts that were in excess of reasonable and competitive market rates. Id. In addition, the Plaintiffs claim that the Defendants caused Tech Park X to incur costs for a water main break caused by the Gutierrez Construction Co., Inc.’s (“GCCI”) negligence. Id. Plaintiffs claim that the Defendants concealed these activities from Plaintiffs, withheld information from Plaintiffs, and misappropriated Tech Park X funds. Id.

*2 The Amended Complaint also alleges that cafeteria renovations were “overcharged”, certain drywall costs were too expensive, and fitness center renovations cost “hundreds of thousands of dollars more” than “usual market rates.” Id. at ¶¶ 37-39. Plaintiffs claim to have identified $1.6 million in construction overcharges. Id. at ¶ 42.

B. The Original Demiraj Report

Judge Casper ordered the Plaintiffs to disclose their expert reports by January 16, 2020. Docket No. 251.[3] On that date, the Plaintiffs disclosed four expert reports, including the “Expert Report of Agim Demiraj, P.E.; CGC” (the “Original Demiraj Report”). Docket No. 329.

In the Original Demiraj Report, Agin Demiraj “performed a cost analyses across different work disciplines to determine whether the Tech Park X construction projects experienced excess charges as compared to fair market rates.” Id. at 2-3. Based on those analyses, Mr. Demiraj opined that Tech Park incurred $1,643,998.00 in excess charges in the years 2012-2017. Id. at 3.

Based on a third-party estimating guide entitled “2016 RS Means,” as modified by certain prevailing wages in Lowell, Massachusetts relating to a school project, and other changes, Mr. Demiraj calculated the estimated costs. Id. at 5, 6-7. He then compared the estimated costs he calculated with the actual costs paid by GCCI to arrive at the alleged overcharges. According to Mr. Demiraj, in developing the opinions in his expert report, he used the following methodology:

Affidavit of Agim Demiraj in Opposition to Defendants’ Motion to Strike Corrected Expert Report of Agim Demiraj (Docket No. 321) (“Demiraj Aff.”) at ¶¶ 11-23.

The Original Demiraj Report includes four exhibits. Exhibit A contains Mr. Demiraj's two-page resume. Docket No. 329 at 11-12. Exhibit B contains a one-page list of the documents considered by Mr. Demiraj. Id. at 13. Specifically, he listed the RS Means 2005, 2006, and 2016 books; “construction set drawings” for 10 construction projects at Tech Park X; the “Schedule of values” for nine construction projects at Tech Park X; and a publication titled “The Commonwealth of Massachusetts – Executive Office of Labor and Work Force Development – Department of Labor Standards – City of Lowell 2016.” Id. Exhibit C appears to be the publication regarding prevailing wage rates for Lowell referenced in Exhibit B. Id. at 15. Exhibit D contains a series of spreadsheets for seven of the eight projects identified by Mr. Demiraj.[4]

C. The New Demiraj Report

*4 On February 28, 2020, Plaintiffs served the New Demiraj Report. Docket No. 314-6 at 8; Docket No. 329-1. In the email transmitting the New Demiraj Report, Attorney Jason Koral stated that “Mr. Demiraj made some corrections to his expert report and supporting exhibits. The corrected report and part of the corrected exhibits are attached. An additional set of corrected exhibits will follow immediately after this email.” Docket No. 314-6 at 8.

In the New Demiraj Report, Mr. Demiraj opined that Tech Park X incurred $1,898,053.92 in excess charges in the years 2012-2017 ($254,055.92 higher than the Original Demiraj Report). Docket No. 329-1 at 3. Mr. Demiraj also stated that:

Docket No. 329-1 at 10 (emphasis added). The New Demiraj Report also includes more Exhibits than the Original Demiraj Report, as well as certain modified exhibits:

In addition, it appears that the spreadsheets at Exhibit D include entirely new spreadsheets for each of the Tech Park X projects at issue. The individual project spreadsheets reflect different estimated costs for individual materials and services provided on each project as compared with the Original Demiraj Report and include line items that were not included in the Original Demiraj Report. Docket No. 314 at 11. Compare Docket No. 329 at 48-72 with Docket No. 373 at 144-194.

*5 In response to the instant motion, Mr. Demiraj submitted an affidavit explaining the differences between the Original Demiraj Report and the New Demiraj Report. In relevant part, Mr. Demiraj averred that:

*6 Demiraj Aff. at ¶¶ 24, 27, 37. Mr. Demiraj maintains that the New Demiraj Report applies the same methodology as the Original Demiraj Report. Id. at ¶¶ 33-34.

II. ANALYSIS

The Defendants argue that the New Demiraj Report is untimely and, therefore, should be stricken pursuant to Rule 37 of the Federal Rules of Civil Procedure. Docket No. 314 at 13-20. The Plaintiffs, on the other hand, maintain that the New Demiraj Report is a proper supplementation under Rule 26(e). Docket No. 320 at 13-19. In addition, they argue that, even if the New Demiraj Report is untimely, a sanction of preclusion is not warranted under the circumstances. Id. at 19-21.

A. Standard Of Review

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to other parties the identity of any expert witness it may use at trial, as well as a written expert report that contains, among other things:

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). If a party fails to make these disclosures, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Though the baseline sanction for failure to comply with Rule 26 is preclusion, preclusion ‘is not a strictly mechanical exercise.’ ” Gay v. Stonebridge Life Ins. Co., 660 F.3d 58, 62 (1st Cir. 2011) (citations omitted). In deciding whether to impose the sanction of preclusion, courts should consider “an array of factors,” including “the sanctioned party's justification for the late disclosure; the opponent-party's ability to overcome its adverse effects (i.e., harmlessness); the history of the litigation; the late disclosure's impact on the district court's docket; and the sanctioned party's need for the precluded evidence.” Harriman v. Hancock Cnty., 627 F.3d 22, 30 (1st Cir. 2010) (citations omitted).

B. Whether The New Demiraj Report Was A Supplementation Under Rule 26(e)

The first issue is whether the New Demiraj Report is properly characterized as a “supplemental” report. A party has a duty to “supplement or correct” expert reports “if the party learns that in some material respect [the report] is incomplete or incorrect, and if additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). “The duty to supplement is intended to benefit the recipient of the earlier disclosure by correcting misinformation or omissions in the prior disclosure.” Presstek, Inc. v. Creo, Inc., No. 05-cv-65-PB, 2007 WL 983820, at *4 (D.N.H. Mar. 30, 2007). “It ‘does not grant a license to supplement a previously filed expert report because a party wants to, but instead imposes an obligation to supplement the report when a party discovers the information it has disclosed is incomplete or incorrect.’ ” Id. (citation omitted); see also In re Zofran (Ondansetron) Products Liab. Litig., No. 1:15-md-2657-FDS, 2019 WL 5423907, at *3 (D. Mass. Oct. 23, 2019) (citation omitted) (“While the rule permits an expert to supplement his or her report even after initial disclosures have passed, it ‘is not a license to freely amend expert reports to bolster a party's position.’ ”).

*7 “Ordinarily, the proper scope of a supplemental report is limited to ‘correcting inaccuracies’ or ‘filling interstices’ in an initial report.” In re Zofran, 2019 WL 5423907, at *3 (citations omitted). An expert report that contains new opinions based on information available prior to the expiration of the expert report deadline is not considered “supplemental.” Marine Polymer Techs., Inc. v. HemCon, Inc., No. 06-cv-100-JD, 2010 WL 1427549, at *4 (D.N.H. Apr. 2, 2010) (internal punctuation marks and quotation omitted); see also Massachusetts Mutual Life Ins. Co. v. DB Structured Products, Inc., No. 11-30039-MGM, 2015 WL 12990692, at *4 (D. Mass. Mar. 31, 2015) (if a report submitted after the close of expert discovery “differs substantially from the report, offers a whole new theory, opinion, or methodology, or is outside of the scope of the general scheme of the report, then it is an improper supplementation.”).

Courts generally distinguish “true supplementation,” such as correcting inadvertent errors or omissions, from gamesmanship, such as new work performed in an attempt to bolster the expert's previously disclosed opinions. Presstek, Inc., 2007 WL 983820, at *5; see also Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 631 (E.D.N.C. June 20, 2008) (citations omitted). “A party may not use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert report.” Marine Polymer Techs., Inc., 2010 WL 1427549, at *4 (citing 6 Moore's Fed. Practice § 26.131[2]).

Here, only a small part of the New Demiraj Report is indeed supplemental. The New Demiraj Report is supplemental only to the extent that Mr. Demiraj corrected the mistakenly applied escalation factors to the 2016 hourly crew labor rates. See Demiraj Aff. at ¶ 24. Otherwise, the New Demiraj Report applies new methodologies, expresses new opinions, and relies on new evidence that appears to have been available at the time he submitted the Original Demiraj Report.

For example, the Demiraj Affidavit claims that the New Demiraj Report applied a 2016 RS Means book for material costs, while the Original Demiraj Report applied the material costs from, primarily, the 2006 RS Means book. Demiraj Aff. at ¶ 20. However, that statement is contradicted by the Original Demiraj Report. The Original Demiraj Report states that Mr. Demiraj relied primarily on the 2016 RS Means Book. See Docket No. 329 at 6.

In addition, the New Demiraj Report contains a new opinion regarding alleged overcharges at two construction projects at Tech Park X that were not disclosed in the Original Demiraj Report. The Original Demiraj Report did not contain any opinion of excess charges with respect to the 2012 Lobby Renovations and the 2016 Insulet Modifications – 2nd Floor Projects. Compare Docket No. 329 at 4 with Docket No. 329-1 at 5.

It also appears that the New Demiraj Report includes new estimates for labor productivity, labor hours, labor rates, and work performed. See Declaration of David M. Ponte, P.E. (Docket No. 330-1) (“Ponte Decl.”) at ¶¶ 11-13. Further, it added and removed certain takeoffs for certain projects. Id. at ¶ 14. Finally, the New Demiraj Report adds new material costs data from new sources and evidence, all of which appear to have been available at the time of the Original Demiraj Report. See id. at ¶ 16. The Demiraj Affidavit does not acknowledge or explain these changes to his report. See id. at ¶¶ 11-14, 16. In sum, I find that the New Demiraj Report is a new expert report that discloses a new methodology, new data and evidence, adds additional projects, and also appears to be an effort at bolstering's Mr. Demiraj's opinions. Accordingly, I find that the New Demiraj Report is untimely and violates Rule 26(a)(2).

C. Whether The New Demiraj Report Should Be Excluded

*8 Having found that the New Demiraj Report is untimely, I must now determine whether it should be excluded pursuant to Rule 37(c)(1). To make that determination, courts consider the following factors: “(1) the party's justification for the late disclosure; (2) the opposing party's ability to overcome any prejudice; (3) the impact on the court docket; (4) the party's history of litigation abuse; and (5) the party's need for the late evidence.” In re Zofran, 2019 WL 5423907, at *6 (quoting Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Tr. v. State Street Bank & Tr. Co., 290 F.R.D. 11, 17 (D. Mass. 2013)).

Here, Plaintiffs do not provide any justification for the late disclosure. See Docket No. 320 at 19-21. To the extent that they rely on Mr. Demiraj's alleged calculation error, that error, as explained above, does not explain all of the substantial changes made in the New Demiraj Report. In addition, this Court notes that the Plaintiffs retained Mr. Demiraj in 2016; he prepared draft calculations at that time, see Docket No. 285; and there is no evidence that he has not had the information and data needed to form his opinions and prepare his report well before the deadline for expert disclosures.

Second, it appears that the late disclosure has prejudiced the Defendants. Defendants appeared to have already spent significant time and resources reviewing the Original Demiraj Report. See Pointe Decl. at ¶ 4. They will now have to redo much of that prior work in the face of tight deadlines for the completion of expert discovery and the filing of motions for summary judgment. Plaintiffs’ late disclosures also affect the Court's docket. This case is now two years old and Judge Casper has already extended the scheduling order deadlines several times. The Plaintiffs’ late disclosure is likely to necessitate yet another extension of the scheduling order deadlines and to affect the timing of the resolution of this case.

Nevertheless, the “First Circuit has ‘acknowledged that preclusion of expert testimony is a grave step, not to be undertaken lightly.’ ” Massachusetts Mutual Life Ins. Co., 2015 WL 12990692, at *2 (quoting Thibeault v. Square D Co., 960 F.2d 239, 247 (1st Cir. 1992)). Therefore, I decline to strike the New Demiraj Report at this time. However, an issue remains whether the Plaintiffs’ Rule 26 disclosures related to the New Demiraj Report are sufficient. See Docket No. 330 at 10-11, 12. Defendants maintain that a review of the exhibits reveals that additional material exists on which Mr. Demiraj relied but that the Plaintiffs have not produced. See id. Therefore, within one week, Mr. Demiraj must produce every document read, considered, created, and reviewed by Mr. Demiraj in connection with the New Demiraj Report, including any emails or other communications with counsel discoverable under Rule 26(b)(4)(C), all websites or third party publications reviewed or read and searched by Mr. Demiraj, and all the spreadsheets, calculations, etc., setting forth the basis for the new calculations and methodologies in the New Demiraj Report. Failure to do so may result in sanctions.

Finally, I order the Plaintiffs to pay the costs and attorney's fees incurred by the Defendants in connection with this motion. I encourage the parties to confer in an attempt to agree on the proper amount of such fees. The parties shall file a joint status report on the issue of fees within two weeks. Should the parties be unable to agree on the proper amount of fees, Defendants may file an application for such fees.

III. ORDER

*9 For the foregoing reasons, I deny the motion to the extent that I decline to strike the New Demiraj Report without prejudice. I grant the motion to the extent that I have ordered the Plaintiffs to produce certain materials as discussed above and have granted the Defendants’ request for attorney's fees and costs.

Citations to “Docket No. ___” are to documents appearing on the Court's electronic docket. They reference the docket number assigned by CM/ECF, and include pincites to the page numbers appearing in the top right corner of each page within the header appended by CM/ECF.

On April 14, 2020, Judge Casper referred the motion to the undersigned. Docket No. 323. Generally, courts have treated motions to strike expert reports as non-dispositive matters. See, e.g., Iacangelo v. Georgetown Univ., No. 05-2086, 2010 WL 4807082, at *3 (D.D.C. Nov. 19, 2010) (finding that motions to strike expert reports and exclude expert testimony are non-dispositive matters); Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 177-178 (S.D.N.Y. 2008) (reviewing magistrate judge's order granting motion to exclude expert testimony under the “clearly erroneous or contrary to law” standard). But see Yang v. Brown Univ., 149 F.R.D. 440, 442-443 (D.R.I. 1993) (finding that magistrate judge's order precluding expert from testifying crossed the line from non-dispositive to dispositive decision-making because the ruling vitiated the plaintiff's case and was tantamount to an involuntary dismissal). Here, even if the court were to strike the New Demiraj Report, Mr. Demiraj would not be precluded from testifying altogether and, therefore, the motion is non-dispositive.

The original deadline for Plaintiffs’ expert disclosures was July 30, 2019. Docket No. 32 at 2. It was subsequently extended to January 6, 2020, Docket No. 208, and ultimately to January 16, 2020.

According to Defendants, Exhibit D did not include a spreadsheet for the 2013 base building café project. Docket No. 314 at 4. Instead, Plaintiffs produced that spreadsheet to Defendants on January 29, 2020, after several requests by Defendants. Id.