Thomas Johnson v. SN Servicing Corporation and U.S. Bank Trust National Association

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April 24, 2026 Get Citation Alerts Download PDF Add Note

Thomas Johnson v. SN Servicing Corporation and U.S. Bank Trust National Association, as trustee for LB-Ranch Series V Trust

District Court, M.D. North Carolina

• Citations: None known
• Docket Number: 1:25-cv-00232

• Precedential Status: Unknown Status

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (37.4K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THOMAS JOHNSON, )
)
Plaintiff, )
)
v. ) 1:25CV232
)
SN SERVICING CORPORATION and )
U.S. BANK TRUST NATIONAL )
ASSOCIATION, as trustee for )
LB-RANCH SERIES V TRUST, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants’ Motion to
Exclude Plaintiff’s Expert, or, Alternatively, Motion to Reopen
Discovery and Extend Defendants’ Expert Disclosure Deadline (Docket
Entry 53 (“Exclusion Motion”)). (See Docket Entry dated Feb. 19,
2026 (referring Exclusion Motion).) For the reasons that follow,
the Court will deny the Exclusion Motion.
INTRODUCTION
As the Court (per Chief United States District Judge Catherine
C. Eagles) has summarized, in this case, Plaintiff has “allege[d]
that[,] after he and [ D]efendants settled an earlier lawsuit [over
a mortgage loan], [ D]efendants immediately breached that
settlement agreement, imposing fees and costs that they explicitly
waived in the settlement agreement.” (Docket Entry 34 at 1.)
Following Defendants’ removal of this case from state court (see
Docket Entry 1), the Court (per Chief Judge Eagles) resolved
disputes about Plaintiff’s pleadings (see, e.g., Docket Entries 34,
39) and the parties filed their now-operative pleadings (see Docket
Entries 40, 41). The Court (per the undersigned Magistrate Judge)
thereafter “adopt[ed ] Defendants’ Rule 26(f) Report with [certain]
modifications/clarifications” (Text Order dated Sept. 29, 2025),
including that “the parties shall complete all discovery by
03/02/2026” (id.), “Plaintiff shall serve any expert disclosures
required by Federal Rule of Civil Procedure 26(a) (2) (B) and (C) by
12/15/2025” (id.), and “Defendants shall serve any expert
disclosures required by Federal Rule of Civil Procedure 26(a) (2) (B)
and (C) by 01/29/2026” (id.). In reliance on that scheduling
order, the Clerk set this case for trial on October 5, 2026. (See
Docket Entry 48.) Plaintiff subsequently sought (with Defendants’
consent) extensions of the parties’ expert disclosure deadlines.
(See Docket Entry 49.) The Court (per the undersigned Magistrate
Judge) “grant[ed] in part [that m]otion” (Text Order dated Dec. 15,
2025 (“Scheduling Order Amendment”)), by extending those deadlines
to January 6, 2026, and February 20, 2026, respectively (see id.).
On January 6, 2026, Plaintiff served Defendants with (and
filed) an “Expert Witness Disclosure” (Docket Entry 50 at 1; see
also id. at 3 (“certifyl[ing] .. . serv[ice]” on that date); Notice
of Elec. Filing, Docket Entry 50 (documenting filing “on
1/6/2026”)), “designat[ing] the following expert witness: Bryan
Wilder” (Docket Entry 50 at 1). According to the Expert Witness

Disclosure, Wilder “appraised the subject property . . . on
November 3, 2023” (id.; see also id. at 2 (confirming attachment of
“Wilder’s curriculum vitae,” reporting that he “has not authored
any publications in the previous 10 years” and “has not testified
as an expert at trial or by deposition in the previous 4 years,”
and disclosing his “compensation”)). “That appraisal is attached
[to the Expert Witness Disclosure] as Exhibit A.” (Id. at 1
(referring to Docket Entry 50-1 (“November 2023 Appraisal”)).) Per
its plain language, “[t]he purpose of th[e November 2023 A]ppraisal
is to form an [o]pinion of [m]arket [v]alue for the subject
property, as defined on page 4 [of the November 2023 Appraisal],
with the definition originating from the Comptroller of the
Currency.” (Docket Entry 50-1 at 4; see also id. at 2-3 (providing
basis and reasons, as well as facts and data considered, for
“opinion of the market value, as defined, of [subject] property” of
“$1,120,000, as of 11/03/2023”), 7-9 (documenting Wilder’s
signature as author of November 2023 Appraisal, along with
additional facts and data considered), 10-24 (attaching supporting
exhibits).) The Expert Witness Disclosure, however, also states

that “Wilder will update the [November 2023 A]ppraisal in
approximately August 202[61] to reflect the value of the [subject]
property closer to trial.” (Docket Entry 50 at 1.)
1 As Defendants have noted, “[t]he [Expert Witness D]isclosure
mistakenly says ‘August 2025’ when it should say ‘August 2026.’”
(Docket Entry 57 at 1 (period moved inside quotation mark).)
3
Just over three weeks after service of the Expert Witness
Disclosure, Defendants filed the Exclusion Motion (see Notice of
Elec. Filing, Docket Entry 53 (documenting filing of Docket Entry
53 “on 1/28/20267)), asking “the Court for an order excluding the
expert opinions of . . . Wilder[] from use at summary judgment or
trial, and for [Defendants’] reasonable attorneys’ fees in
connection with thle Exclusion M]lotion” (Docket Entry 53 at 1; see
also id. at 3 (“Alternatively, should Mr. Wilder be permitted to
provide a supplemental report in or about August, 2026, Defendants
request that (1) the discovery period be opened for thirty (30)
days so they can depose him (or re-depose him based on his new
report, if applicable) and (2) that their expert disclosure
deadline be extended by thirty (30) days so that they can provide
a meaningful rebuttal.”)). On February 9, 2026, Defendants “served
[a] subpoena [on Wilder] by delivering a copy to [him via
Plaintiff’s counsel] ... .” (Docket Entry 56-1 at 2.) That
subpoena commanded Wilder to appear for a deposition on February
19, 2026 (see id. at 1), at which he must produce an attached list
of documents (see id.; see also id. at 4-5 (listing 17 categories
of demanded documents)). Plaintiff responded in opposition to the
Exclusion Motion (see Docket Entry 56 (“Response”)) and Defendants
replied (see Docket Entry 57 (“Reply”)).

DISCUSSION
With the Exclusion Motion and “[p]ursuant to the Court’s
Scheduling Order[ Amendment, as well as] Rules 16(f)(1), 26(a)(2),
and 37(c) of the Federal Rules of Civil Procedure, Defendants
. . . [have] move[d] the Court for an order excluding [Wilder’s]
expert opinions” (Docket Entry 53 at 1),2 on the ground that
Plaintiff “failed to timely provide an expert report [from Wilder]
pursuant to the Court’s . . . Scheduling Order [Amendment] or Rule
26(a)(2)” (id.; see also id. (describing “delay [a]s neither
substantially justified [n]or harmless, warranting exclusion under
Rule 37(c)(1)”)). The Exclusion Motion elaborates as follows:
Mr. Wilder is a residential appraiser retained by
Plaintiff to provide an appraisal of the home he sold to
demonstrate that Plaintiff sold his house for less than
he would have absent this dispute. As demonstrated by
[the] January 6, 2026 [E]xpert [Witness D]isclosure, Mr.
Wilder provided a previous appraisal of the house in
November of 2023 and intends to ‘update the [November
2023 A]ppraisal in approximately August 202[6] to reflect
the value of the property closer to trial.’ As the
November 2023 [A]ppraisal is not at dispute in this case,
the entire basis of Mr. Wilder’s opinion’s will come from
a report to be produced seven months after the disclosure
deadline and two months or less before trial. Defendants
can therefore conduct no meaningful deposition of Mr.
Wilder before the March 2, 2026 discovery deadline, nor
can Defendants meaningfully designate a rebuttal expert
and provide a rebuttal report prior to their February 20,
2026 disclosure deadline because there is no opinion to
rebut. Plaintiff’s untimely report is accordingly
neither substantially justified nor harmless, and Mr.
Wilder should be excluded as an expert.
2 Unless otherwise noted, references hereinafter to “Rule ___”
refer to the Federal Rules of Civil Procedure.
5
(Id. at 1-2 (internal citation omitted) (emphasis in original)
(quoting Docket Entry 50 at 1); see also id. at 2 (“If Mr. Wilder
is excluded, Defendants are entitled to their reasonable attorneys’
fees pursuant to Rule 16(f) – which governs failure to comply with
a scheduling order – and/or [Rule] 37(c)(1) – which governs failure
to comply with Rule 26(a)’s disclosure requirements.”).)
The Federal Rules of Civil Procedure mandate that “a party
must disclose to the other parties the identity of any witness [the
party] may use at trial to present evidence under Federal Rules of
Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A); see also
Fed. R. Evid. 702 (addressing expert witness testimony); Fed. R.
Evid. 703 (addressing bases of expert opinion testimony); Fed. R.
Evid. 705 (addressing testimony about facts or data underlying
expert opinions). Absent circumstances not applicable here,3
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 . . . . The report must contain:
(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them;
(iii) any exhibits that will be used to summarize or
support them;
3 The written report requirement for disclosures regarding
retained experts attaches “[u]nless otherwise stipulated or ordered
by the court,” Fed. R. Civ. P. 26(a)(2)(B), and Plaintiff has not
claimed exemption from that requirement on either of those bases
(see Docket Entry 56 at 1-13).
6
(iv) the witness’s qualifications, including a list
of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for
the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B) (emphasis added).
“A party must make these disclosures at the times and in the
sequence that the [C]ourt orders.” Fed. R. Civ. P. 26(a)(2)(D);
see also Fed. R. Civ. P. 16(b)(3)(B)(i) (authorizing courts to set
“timing of disclosures under Rule[] 26(a)” in scheduling order);
Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge’s consent.”). Additionally:
A party who has made a disclosure under Rule 26(a) . . .
must supplement or correct its disclosure . . .
(A) in a timely manner if the party learns that in
some material respect the disclosure . . . 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;
or
(B) as ordered by the [C]ourt.
Fed. R. Civ. P. 26(e)(1); see also Fed. R. Civ. P. 26(e)(2)
(providing that “[a]ny additions or changes to th[e] information
[in a retained expert’s report] must be disclosed by the time the
party’s pretrial disclosures under Rule 26(a)(3) are due”).4
4 In adopting the schedule for this case, the Court did not
set a specific deadline for correction of expert reports (see Text
(continued...)
7
“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 . . . or
at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1) (emphasis added). “The
exclusion of evidence under Rule 37(c)(1) for failure to make a
disclosure required by Rule 26(a) [or (e)] is ‘self-executing’ and
‘automatic.’” Caraustar Indus., Inc. v. North Ga. Converting,
Inc., No. 3:04CV187, 2006 WL 3751453, at *8 (W.D.N.C. Dec. 19,
2006) (unpublished) (quoting Fed. R. Civ. P. 37 advisory
committee’s note to 1993 amendment), appeal dismissed, 219 F. App’x
997 (Fed. Cir. 2007); accord, e.g., Doe v. Coastal Carolina Univ.,
No. 4:18CV268, 2021 WL 1654747, at *5 (D.S.C. Mar. 5, 2021)
(unpublished); Goodwin v. Cockrell, No. 4:13CV199, 2015 WL 575861,
at *5 (E.D.N.C. Feb. 11, 2015) (unpublished). In other words,
“Rule 37(c)(1) . . . requires witness and information exclusion for
an untimely disclosure, unless the violation is substantially
justified or harmless.” Nelson-Salabes, Inc. v. Morningside Dev.,

4(...continued)
Order dated Sept. 29, 2025; see also Docket Entry 42 at 3
(“Supplementations under Fed. R. Civ. P. 26(e) are due as soon as
practicable.”)), but the trial notice decrees that “pretrial
disclosures [under Rule 26(a)(3)] must be made no later than
September 4, 2026” (Docket Entry 48 at 1 (emphasis omitted)).
Accordingly, the above-quoted rule provisions required Plaintiff to
correct the Expert Witness Disclosure “in a timely manner,” Fed. R.
Civ. P. 26(e)(1)(A), and (at a minimum) “no later than September 4,
2026” (Docket Entry 48 at 1 (emphasis omitted)).
8
LLC, 284 F.3d 505, 512 n.10 (4th Cir. 2002); see also Southern
States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592,
595 n.2 (4th Cir. 2003) (“The Rule 37(c) advisory committee notes
emphasize that the automatic sanction of exclusion provides a
strong inducement for disclosure of material that the disclosing
party would expect to use as evidence.” (internal quotation marks
omitted)).
“The party failing to disclose information bears the burden of
establishing that the nondisclosure was substantially justified or
was harmless.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017). To assist district courts in assessing whether a
party has carried that burden, the United States Court of Appeals
for the Fourth Circuit has directed that,
in exercising its broad discretion to determine whether
a nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion
analysis, a district court should be guided by the
following factors: (1) the surprise to the party against
whom the evidence would be offered; (2) the ability of
that party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence.
Southern States, 318 F.3d at 597; see also Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (“The burden of establishing
these factors lies with the nondisclosing party . . . .”).5
5 “The first four factors listed above relate primarily to the
harmlessness exception, while the last factor, addressing the
(continued...)
9
Here, because the Expert Witness Disclosure (as served by
Plaintiff on January 6, 2026) explicitly stated that “Wilder will
update the [November 2023 A]ppraisal in approximately August 202[6]
to reflect the value of the [subject] property closer to trial”
(Docket Entry 50 at 1), Plaintiff (at that time) failed to disclose
“a complete statement of all opinions [Wilder] will express and the
basis and reasons for them,” Fed. R. Civ. P. 26(a)(2)(B)(i)
(emphasis added), “the facts or data considered by the witness in
forming the[ undisclosed opinions],” Fed. R. Civ. P.
26(a)(2)(B)(ii), and “any exhibits that will be used to summarize
or support the[ undisclosed opinions],” Fed. R. Civ. P.
26(a)(2)(B)(iii).6 Accordingly, when Plaintiff’s deadline to serve

5(...continued)
party’s explanation for its nondisclosure, relates mainly to the
substantial justification exception.” Bresler, 855 F.3d at 190.
6 Consistent with that understanding, another court previously
gave this analysis of the applicability of Rule 26(a)(2)(B) to
appraisal-related, opinion testimony:
[T]estimony by Mr. Bryant regarding the value of the
hospital and surrounding real property and testimony by
Mr. Bell regarding the value of the hospital, hospital
equipment, and personal property appears to be the type
of expert appraisal testimony for which a report under
subsection (B) [of Rule 26(a)(2)] is required. Even if
these witnesses were called to testify about appraisals
that had previously been rendered prior to litigation,
[the d]efendants[’] intention to introduce such expert
testimony on value . . . reasonably requires compliance
with Rule 26(a)(2)(B). . . . Obviously, to the extent
either witness updates or expands upon his pre-litigation
opinions regarding the value of property, compliance with
subsection (B) [of Rule 26(a)(2)] is also required.
(continued...)
10
expert disclosures passed (and still 22 days later when Defendants
filed the Exclusion Motion), as concerns expert testimony from
Wilder, Plaintiff had “fail[ed] to provide information or identify
a witness as required by Rule 26(a),” Fed. R. Civ. P. 37(c)(1)
(emphasis added). By operation of Rule 37(c)(1), Plaintiff thus
(at least at that point) “[wa]s not allowed to use that information
or witness to supply evidence on a motion . . . or at trial, unless
the failure was substantially justified or is harmless.” Id. However, in the Response, Plaintiff took note of Defendants’
objection to the “sentence in the [E]xpert [Witness D]isclosure
reserving the right to update the [November 2023 A]ppraisal”
(Docket Entry 56 at 1), and “withdr[ew] that language” (id.).
Hence, no later than February 11, 2026, Plaintiff – as “[a] party
who ha[d] made a disclosure under Rule 26(a),” Fed. R. Civ. P.
26(e)(1) – had “correct[ed that] disclosure,” id.7 But that
correction did not assuage Defendants, who (in their Reply)
(A) groused that “Plaintiff completely backtrack[ed] his [E]xpert
[Witness D]isclosure, [by] withdrawing the proposed future report”

6(...continued)
Medical Provider Fin. Corp., II v. Southwest Doctors Grp., LLC, No.
2:07CV345, 2008 WL 11451258, at *2 (D. Nev. Nov. 3, 2008)
(unpublished) (emphasis added).
7 Plaintiff did not need to serve Defendants with a formal,
corrected version of the Expert Witness Disclosure (omitting the
language about an update to the November 2023 Appraisal), because
(via the Response) that “corrective information ha[d] . . . been
made known to [Defendants] during the discovery process [and] in
writing,” Fed. R. Civ. P. 26(e)(1)(A).
11
(Docket Entry 57 at 2), and (B) insisted that “[t]his eleventh hour
reversal nine days before Defendants’ February 20, 2026 expert
disclosure deadline not only violate[d Plaintiff’s] duties in
expert discovery under Rule 26, but [also] severely prejudice[d]
Defendants’ ability to disclose a rebuttal expert and provide a
report” (id.). Those lines of argument suffer from several flaws.
First, by withdrawing any forecast of an update to the
November 2023 Appraisal, Plaintiff did not “completely backtrack[
from] his [E]xpert [Witness D]isclosure” (id. (emphasis added)).
As the Response observes, when “Plaintiff timely disclosed Mr.
Wilder as an expert witness pursuant to the Court’s Scheduling
Order[ Amendment, Plaintiff] attach[ed] Mr. Wilder’s complete
[November 2023 A]ppraisal . . . .” (Docket Entry 56 at 3.) At
that time, Defendants reasonably would have understood that the
November 2023 Appraisal constituted a statement of (at least some)
opinions Wilder would “express and the basis and reasons for them,”
Fed. R. Civ. P. 26(a)(2)(B)(i), as well as “the facts or data
considered by [Wilder] in forming them,” Fed. R. Civ. P.
26(a)(2)(B)(ii), and “exhibits that will be used to summarize or

support them,” Fed. R. Civ. P. 26(a)(2)(B)(iii), even if Wilder
intended to “update the [November 2023 A]ppraisal” (Docket Entry 50
at 1). Through the Response, Plaintiff now has made clear that
“[t]he November 2023 [A]ppraisal is . . . Wilder’s complete expert
opinion.” (Docket Entry 56 at 1-2.) In other words, (A) from
12
January 6 to February 11, 2026, Plaintiff expressed an intent to
rely on the November 2023 Appraisal, as well as an update thereto,
and (B) as of February 11, 2026, Plaintiff expressed an intent to
rely only on the November 2023 Appraisal. That change by Plaintiff
simply does not constitute a “complete[] backtrack[ing from] his
[E]xpert [Witness D]isclosure” (Docket Entry 57 at 2).8
Second, Defendants have not established that, by correcting
the Expert Witness Disclosure on February 11, 2026, to remove the
prospect of any update to the November 2023 Appraisal, Plaintiff
“violate[d] his duties in expert discovery under Rule 26” (id.).
As discussed above, the Exclusion Motion pointed out that (as
originally served) Plaintiff’s Expert Witness Disclosure failed to
comply with the requirement to disclose “a complete statement of
all opinions [Wilder] will express and the basis and reasons for
them,” Fed. R. Civ. P. 26(a)(2)(B)(i) (emphasis added). In
response, Plaintiff promptly corrected that failure by stipulating
that the November 2023 Appraisal originally attached to the Expert
Witness Disclosure contains all of Wilder’s opinions on which
Plaintiff will rely, as well as all the bases/reasons and the

supporting facts/data/exhibits for those opinions. Given that
8 For the same basic reasons, the Court rejects Defendants’
assertions that, “[b]y withdrawing the proposed future appraisal,
Mr. Wilder’s opinions have changed in such a manner that is not
proper under Rule 26(e)” (Docket Entry 57 at 3), and that the
correction to the Expert Witness Disclosure amounts to the sort of
“bad faith and gamesmanship, which courts reject” (id. at 6
(internal quotation marks omitted)).
13
Plaintiff made that correction only 14 days after Defendants
brought it to his attention (i.e., eight days fewer than it took
Defendants to identify the defect in the Expert Witness Disclosure
following its disclosure), the Court deems Plaintiff to have acted
“in a timely manner,” Fed. R. Civ. P. 26(e)(1)(A).9
Third, the record does not support Defendants’ assertion that
Plaintiff’s correction of the Expert Witness Disclosure “severely
prejudice[d their] ability to disclose a rebuttal expert and
provide a report” (Docket Entry 57 at 2 (emphasis added); see also
id. at 5 (“Defendants reasonably believed based on the explicit
language of the [Expert Witness D]isclosure that they would have to
rebut a[n updated] report submitted in August 2026. They clearly
could not do this before the February 20[, 2026] deadline, and
accordingly would have had to submit a rebuttal report when it was
unclear exactly what opinions they were rebutting.”)). To begin,
the Court never set a deadline for rebuttal expert reports. (See
Text Order dated Sept. 29, 2025 (“adopting [Docket Entry 42] with

9 By correcting the Expert Witness Disclosure on February 11,
2026, Plaintiff also acted well ahead of the deadline for pretrial
disclosures under Rule 26(a)(3) of “September 4, 2026” (Docket
Entry 48 at 1 (emphasis omitted)), consistent with the mandate that
“changes to th[e] information [in an expert report] must be
disclosed by th[at] time,” Fed. R. Civ. P. 26(e)(2). Moreover, if
– prior to filing the Exclusion Motion – Defendants had taken steps
beyond a single communication to Plaintiff offering the rough
equivalent of two business days book-ending a weekend “to respond
with available times to meet-and-confer” (Docket Entry 53 at 3),
they might have learned even earlier that he would withdraw his
proposal to update the November 2023 Appraisal.
14
[specified] modifications/clarifications,” none of which imposed a
deadline for rebuttal expert reports); see also Docket Entry 42 at
3 (proposing deadlines for service of initial expert reports from
Plaintiff and Defendants under Rule 26(a)(2)(B), but not for
rebuttal expert reports as described under Rule 26(a)(2)(D)(ii));
Text Order dated Dec. 15, 2025 (extending deadlines for service of
initial expert reports from Plaintiff (to January 6, 2026) and
Defendants (to February 20, 2026), without any reference to
rebuttal expert reports)). “Absent a stipulation or a court
order,” Fed. R. Civ. P. 26(a)(2)(D), Defendants remained free to
serve an expert report “intended solely to contradict or rebut
evidence on the same subject matter identified by [Plaintiff] under
Rule 26(a)(2)(B) or (C), within 30 days after [Plaintiff’s]
disclosure,” Fed. R. Civ. P. 26(a)(2)(D)(ii) (emphasis added).
As such, regardless of the content of the Expert Witness
Disclosure served by Plaintiff on January 6, 2026 (including the
prospect of an update to the November 2023 Appraisal in August
2026), Defendants could have planned to serve (A) their own initial
expert report under Rule 26(a)(2)(B) by February 20, 2026, and/or

(B) a rebuttal expert report as defined by Rule 26(a)(2)(D)(ii)
within 30 days of Plaintiff’s service (in August 2026 or any other
time) of an update to the Expert Witness Disclosure. Likewise,
upon Plaintiff’s correction of the Expert Witness Disclosure on
February 11, 2026, Defendants could have served (A) their own
15
initial expert report under Rule 26(a)(2)(B) by February 20, 2026,
and/or (B) a rebuttal expert report within the meaning of Rule
26(a)(2)(D)(ii) within 30 days (i.e., by March 13, 2026). Under
these circumstances, the Court does not find that either
Plaintiff’s (errant) inclusion in the Expert Witness Disclosure
(when served on January 6, 2026) of a statement of intent to update
the November 2023 Appraisal or Plaintiff’s correction of that error
(on February 11, 2026) “caus[ed] severe prejudice to Defendants’
ability to participate in expert discovery” (Docket Entry 57 at 2).
Because those arguments by Defendants about the nature and
consequences of Plaintiff’s correction of the Expert Witness
Disclosure (to withdraw the forecast of an update to the November
2023 Appraisal) fall short, no basis exists for the Court to adopt
Defendants’ position that “Wilder and the November 2023 Appraisal
should accordingly be excluded, or, alternatively, Defendants
should be afforded extra time to provide a rebuttal witness and
report” (id. at 6). Nevertheless, to avoid any doubt, the Court
will conduct additional analysis of “substantial[] justifi[cation
and ] harmless[ness],” Fed. R. Civ. P. 37(c)(1), utilizing the

Southern States factors, to address Defendants’ contention that,
“[e]ven with [Plaintiff’s] withdrawal of [reliance on ] Wilder’s
[issuance of a] future report [updating the November 2023
Appraisal], the Southern States factors . . . still support
exclusion” (Docket Entry 57 at 6). But see Wilkins, 751 F.3d at
16 222 (holding that “district court[s are] not required to tick
through each of the Southern States factors” (emphasis omitted)).
Starting with the last (and only substantial justification-
related) factor, i.e., Plaintiff’s “explanation for [his] failure
to [timely] disclose,” Southern States, 318 F.3d at 597, “a
complete statement of all opinions [Wilder] will express,” Fed. R.
Civ. P. 26(a)(2)(B)(i), the Response states that “the [Expert
Witness D]isclosure included th[e] language [forecasting an update
to the November 2023 Appraisal] in anticipation of [Defendants]
argu[ing] . . . that the proper measure of damages requires a
current property value rather than one at the time of breach”
(Docket Entry 56 at 9). Although the Court understands as a
logical matter why Plaintiff wanted to hedge against such an
argument, he has provided no authority construing Rule 26(a)(2)(B)
to allow such hedging in an expert report (see id.) and the plain
language of that rule provision makes no such allowance, see Fed.
R. Civ. P. 26(a)(2)(B)(i). As a result, the Court concludes that
Plaintiff’s “explanation,” Southern States, 318 F.3d at 597, which

“relates mainly to the substantial justification exception,”
Bresler, 855 F.3d at 190, does not carry his “burden of
establishing that [exclusion exception],” id. Turning to the first two of the four, harmlessness-related
factors that inform the exclusion analysis under Rule 37(c)(1),
(1) “the surprise to [Defendants],” Southern States, 318 F.3d at
17 597, and (2) “the[ir] ability . . . to cure the surprise,” id., Defendants have repeated their contention that, by withdrawing the
Expert Witness Disclosure’s statement that Wilder would update the
November 2023 Appraisal, “Plaintiff has completely changed the
nature of [] Wilder’s opinions” (Docket Entry 57 at 6). As
detailed above, the record evinces no such “complete[] change[]”
(id.). Regardless, (A) as Defendants’ brief supporting the
Exclusion Motion acknowledges, “[t]his Court . . . ha[s ] treated
prejudice and surprise synonymously when analyzing the first
[Southern States] factor” (Docket Entry 54 at 5 (citing, as
example, Barnhill v. Accordius Health at Greensboro, LLC, No.
1:22CV322, 2023 WL 7634449, at *16 (M.D.N.C. Nov. 14, 2023)
(unpublished))), and (B) as the Response explains, “[w]ith that
reservation [of an update to the November 2023 Appraisal]
withdrawn, there is . . . no prejudice” (Docket Entry 56 at 2).
In that regard, “Defendants have had the full [November 2023
Appraisal] since January 6, 2026[ and, on February 9, 2026,] ha[d
already] subpoenaed Mr. Wilder for deposition . . . .” (Id. at 8.)
Defendants thus could have served an initial expert report under

Rule 26(a)(2)(B) by their deadline of February 20, 2026, and/or
could have served a rebuttal expert report within the meaning of
Rule 26(a)(2)(D)(ii) by the default deadline for such reports of
March 13, 2026 (i.e., within 30 days of Plaintiff’s correction of
the Expert Witness Disclosure). Lastly (respecting the Southern
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States factors of surprise and cure), the Court cannot credit
Defendants’ contention (in their Reply) that Plaintiff’s withdrawal
of his proposal to update the November 2023 Appraisal “required
[them] to find and retain a rebuttal expert and produce a rebuttal
report” (Docket Entry 57 at 7). That contention marks an abrupt
about-face from Defendants’ prior statement (in the brief
supporting the Exclusion Motion) that – despite Plaintiff’s
disclosure (on January 6, 2026) of the November 2023 Appraisal as
an expert opinion from Wilder on which Plaintiff would rely (albeit
subject to updating) – “Wilder’s November 2023 [A]ppraisal [wa]s
not at issue in this case, and therefore will not (nor [sic] could
not) be rebutted by an expert for Defendants” (Docket Entry 54 at
2; see also id. at 6 (“Defendants will not, nor [sic] cannot, rebut
the November 2023 appraisal, which has no bearing on this
lawsuit.”)). Defendants have not explained how, when they filed
the Exclusion Motion on January 28, 2026, “Wilder’s November 2023
[A]ppraisal . . . could not[] be rebutted by an expert for
Defendants” (id. at 2), but, when they filed the Reply on February
13, 2026, that same November 2023 Appraisal “required [them] to

find and retain a rebuttal expert and produce a rebuttal report”
(Docket Entry 57 at 7). (See id.) In sum, the first two Southern
States factors favor a finding of harmlessness under Rule 37(c)(1).
Because (for reasons just discussed) Plaintiff’s withdrawal
(on February 11, 2026) of the statement in the Expert Witness
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Disclosure that Wilder would update the November 2023 Appraisal
neither prejudiced Defendants nor required any curative measures by
the Court, no need exists to delay the trial; therefore, the next
harmlessness-related factor, i.e., “the extent to which allowing
[Plaintiff to rely on the corrected Expert Witness Disclosure]
would disrupt the trial,” Southern States, 318 F.3d at 597, also
supports the view that the initial ambiguity about the extent of
his reliance on the November 2023 Appraisal “[wa]s harmless,” Fed.
R. Civ. P. 37(c)(1). The foregoing analysis leaves for
consideration only the factor concerning “the importance of the
evidence,” Southern States, 318 F.3d at 597. Plaintiff has
characterized “the [November 2023 A]ppraisal [a]s central to [his]
damages, [but has conceded that] importance ‘must be viewed from
the perspective of both parties.’” (Docket Entry 56 at 8 (quoting
Southern States, 318 F.3d at 597).) Defendants, for their part,
have posited that “this factor is neutral in the exclusion
analysis.” (Docket Entry 57 at 8.) The Court will adopt
Defendants’ position and will treat this factor as neutral.
On balance then, three of the four Southern States factors

pertinent to the question of harmlessness weigh in favor of a
finding that Plaintiff’s failure to timely disclose “a complete
statement of all opinions [Wilder] will express and the basis and
reasons for them,” Fed. R. Civ. P. 26(a)(2)(B)(i), “[wa]s
harmless,” Fed. R. Civ. P. 37(c)(1). Based on that conclusion (and
20
for all the reasons discussed), the Court rejects Defendants’
request for Wilder’s “exclu[sion] as an expert witness along with
his November 2023 [A]ppraisal, or, alternatively, . . . [al]
reopened [period] to allow Defendants to designate their own
rebuttal expert witness” (Docket Entry 57 at 12), as well as their
claim of ‘“entitle[ment] to their reasonable attorneys’ fees
incurred in connection with the [Exclusion] Motion” (id.).'°
CONCLUSION
The version of the Expert Witness Disclosure Plaintiff
originally served on Defendants failed to disclose “a complete
statement of all opinions [Wilder] will express and the basis and
reasons for them,” Fed. R. Civ. P. 26(a) (2) (B) (i); however,
Plaintiff has carried his “burden of establishing that the
nondisclosure .. . was harmless,” Bresler, 855 F.3d at 190.

10 At one = point, the Reply argues that Defendants’
“[s]cheduling [of Wilder’s] deposition out of an abundance of
caution . . . should not waive [their] right to challenge the
validity of [his] opinion... .” (Docket Entry 57 at 7 (emphasis
added).) Elsewhere in the Reply, Defendants argued that (A) “[t]he
entire basis of Plaintiff’s withdrawal of the [update to the
November 2023 Alppraisal . . . is the breach-date valuation of
property damage” (id. at 9 (citing Docket Entry 56 at 4-6, 9-10);
see also id. (discussing Feierstein v. North Carolina Dep’t of
Env’t & Nat. Res., 211 N.C. App. 194, 195-96, 712 S.E.2d 343, 344-
45 (2011))), but that (B) “Plaintiff does not even adhere to his
own damages theory” (id. at 10). Those arguments about the merits
of Wilder’s opinion and/or its applicability to the facts of this
case do not warrant exclusion under Rule 37(c) (1); to the contrary,
“[Ti]f further analysis of the value or admissibility of
[Plaintiff’s expert] evidence is required, such a determination is
better made by the presiding judge closer to trial.” Pascoe v.
Furniture Brand Int’l, Inc., No. 3:10CV193, 2011 WL 475003, at *3
(W.D.N.C. Feb. 4, 2011) (unpublished).
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IT IS THEREFORE ORDERED that the Exclusion Motion (Docket
Entry 53) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 24, 2026

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