Any Rule 26 Violation in the Accounting Expert’s Disclosure was Substantially Justified
Posted on August 4, 2025 by Expert Witness Profiler
Plaintiffs Michael Sutherland and Comfy Materials LLC sued Defendant Wellshow Machining Parts, Inc. for copyright infringement and false advertising relating to Defendant Wellshow’s Amazon listings of its
competing products.
Per the Amended Case Management and Scheduling Order, Plaintiffs disclosed one expert witness, Charleen Purdy, on March 14, 2025, who will “opine on Plaintiffs’ economic losses in connection with their claims brought against Defendant, and to prepare any rebuttal analysis and report related to any alleged damages incurred by Wellshow as to its tortious interference claim.”
In her report, Purdy disclosed that discovery was ongoing at the time of her expert report, and therefore, she could not form an opinion on damages due to the outstanding requested discovery. Specifically, Plaintiffs’ expert report indicated that she had only received incomplete and insufficient documents from Defendant on March 7, 2025, and requested a list of additional documentation from Defendant “in order to determine, if any, the economic loss suffered by the Plaintiffs” and Defendant. Plaintiffs’ expert report also reserved the right to supplement her report following full and complete discovery.
Therefore, Defendant, Wellshow Machining Parts, Inc., sought an order precluding Plaintiffs from offering undisclosed expert testimony and precluding Plaintiff Michael Sutherland, corporate representatives, or employees of Defendant Comfy Materials, LLC from providing expert testimony under Federal Rule of Evidence 702.
Accounting Expert Witness
Charleen E. Purdy is a principal at Perzel & Purdy Forensic CPA’s, LLC. She is licensed as a Certified Public Accountant (CPA), credentialed as a Certified Valuation Analyst (CVA), Master Analyst in Financial Forensics (MAFF), and trained in Collaborative Divorce.
Her experience includes services in the areas of forensic accounting, damage claims, business valuations, economic loss analysis, money laundering, shareholder disputes, trust and estate litigation, Ponzi schemes, personal injury claims, litigation support, and expert witness services.
Discussion by the Court
Plaintiffs conceded that its expert witness disclosure is noncompliant with Rule 26(a)(2)(B) and Federal Rule of Evidence 702. As such, Plaintiffs’ expert report has no “facts or data” under Rule 26(a)(2)(B)(i)-(ii) because she could not properly form an opinion. Nevertheless, to comply with the Amended CMSO, Plaintiff’s timely disclosed Purdy to meet “the requirements of Rule 26(a)(2)(B) to the extent possible.”
Here, the Court found that even if Purdy’s expert report is insufficient under Rule 26(a)(2)(B), Plaintiffs still have time to supplement Purdy’s expert report within a timely manner under Rule 26(e).
As for the timing of the supplement, Rule 26(e)(2) states that for a Rule 26(a)(2)(B) expert (i.e., a retained expert), “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.” Rule 26(a)(3)(B) provided that “these disclosures must be made at least 30 days before trial.” The CMSO has set the trial on November 3, 2025, and directs the parties to “meet the pretrial disclosure requirements and deadlines in Fed. R. Civ. P. 26(a)(3).” Thus, the Plaintiffs still have until October 4, 2025, to supplement Purdy’s expert report.
Analysis
To begin with, the Court found that any Rule 26(a)(2)(B) violation in Purdy’s disclosure on March 14, 2025, was substantially justified. First, Defendant’s motion did not make any argument about potential prejudice or surprise. Nor could Defendant make such arguments since, following Plaintiff’s timely expert witness disclosure on March 14, 2025, Defendant had the opportunity to provide the documents requested by Purdy and/or depose her before the discovery cut-off on April 28, 2025.
Additionally, Plaintiffs’ failure to provide a sufficient disclosure was harmless under Rule 37 because (1) Defendant has been on notice as to the subject matter of Purdy’s testimony since the expert witness disclosure deadline, and (2) any prejudice resulting from Plaintiffs’ insufficient disclosure can be cured by a supplemental disclosure.
Held
The Court denied Defendant Wellshow’s motion in limine to preclude the testimony Plaintiff’s expert Charleen Purdy.
Key Takeaway:
Substantial justification exists if there is justification to a degree that could satisfy a reasonable person that parties differ as to whether the party was required to comply with the disclosure request.
The Court found any violation of Rule 26(a)(2)(B) in Charleen Purdy’s disclosure was substantially justified.
Case Details:
| Case Caption: | Sutherland V. Wellshow Machining Parts, Inc. Et Al |
| Docket Number: | 8:24cv854 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | August 1, 2025 |
