Opinion
2:23-cv-01778-RFB-NJK
08-15-2024
LUCIA RAMOS-QUIRARTE, Plaintiffs, v. STATE OF NEVADA, et al., Defendants.
ORDER [DOCKET NO. 36]
Nancy J. Koppe United States Magistrate Judge
Pending before the Court is Defendants' motion to exclude portions of Plaintiff's rebuttal expert report prepared by Dr. Roger A. Russell. Docket No. 36. The motion argues that portions of that report are improper because they were improperly labeled as “rebuttal” opinions.
The Court may not exclude an improper expert report if the underlying violation is harmless. Fed.R.Civ.P. 37(c)(1). “Harmlessness may be established if a disclosure is made sufficiently before the discovery cutoff to enable the movant to depose the expert and challenge his expert report.” Pac. Indemn. Co. v. Nidec Motor Corp., 203 F.Supp.3d 1092, 1097 (D. Nev. Aug. 25, 2016) (collecting cases). In line with that reasoning, courts have found harmlessness sufficient to avoid exclusion sanctions when a rebuttal report served a month before the discovery cutoff includes information that should have been included in an initial report. See, e.g., Felix v. CSAA Gen. Ins. Co., 2017 WL 1159724, at *3 (D. Nev. Mar. 28, 2017) (addressing harmlessness for improper rebuttal report served 33 days before discovery cutoff).
Courts have also long implored counsel to work cooperatively to ameliorate any disclosure deficiencies, rather than automatically resorting to motion practice for exclusionary sanctions. See, e.g., Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 243 (D. Nev. 2017) (quoting Jones v. Wal-Mart Stores, Inc., 2016 WL 1248707, at *7 (D. Nev. Mar. 28, 2016)).
In this case, the subject expert report was served on July 1, 2024. Docket No. 37-3 at 4. Discovery does not close until September 30, 2024. Docket No. 34 at 4. Hence, the subject report was served three months before the discovery cutoff. Although Defendants argue that the expert report was improperly labeled as a rebuttal, their motion provides no explanation as to how striking it could be warranted (even assuming that it was improperly labeled) given the time remaining within the discovery period.
The Court expresses no opinion herein as to whether the report was improperly labeled because, even assuming that it was, the motion fails to show that the relief requested is warranted.
Accordingly, the motion to strike is DENIED without prejudice. If Defendants continue to seek relief on this issue, they must file a renewed request by August 22, 2024.
IT IS SO ORDERED.