Hanover Insurance Company and Lodge Construction, Inc. brought contract claims under the Contract Disputes Act in the U.S. Court of Federal Claims.  In response, the Government originally filed answers raising no affirmative defenses or counterclaims. Later the Government sought to amend its answers to add an affirmative defense and three counterclaims based on fraud.

The Court-ordered deadline to exchange expert reports occurred nine days before the Court granted the Government’s motion to file amended answers. Hanover’s expert reports did not address the Government’s fraud-based counterclaims, and they, therefore, filed a rebuttal expert report. The Government moved to strike the rebuttal report as untimely.

The Court denied the motion to strike, concluding that Hanover’s failure to timely disclose was substantially justified because “Plaintiffs were under an obligation to disclose the report by the affirmative expert deadline only if the report related to a claim that was pending at the time. Plaintiffs . . . held the reasonable belief that there was no fraud claim properly before the court.” The Court also noted that providing the Government with the opportunity to file a surrebuttal would cure any potential prejudice against the Government. Based on these facts, the Court denied the Government’s motion to strike.

Read Judge Sweeney’s full decision here.