Summary
explaining that an expert's "publications, compensation, and prior testimony" is essential for the opponent to prepare an adequate defense, and omission of that information is not harmless
Summary of this case from Riley v. NewPenn Kilt, LLCOpinion
No. 02-2004-JWL
November 1, 2002
ORDER
Pending before the Court is Defendant's Motion to Strike the Expert Report of Ken Blundell (doc. 61) and Plaintiff's Motion to Extend Time until October 21, 2002 to Designate Kenneth Blundell as an Expert Witness (doc. 70). In support of its Motion, Defendant contends Plaintiff's disclosure of Kenneth Blundell is untimely and fails to satisfy the requirements set forth in Fed.R.Civ.P. 26(a)(2)(B). The Court agrees and therefore strikes Plaintiff's expert designation and denies Plaintiff's motion for extension of time to file his expert report.
Procedural Background
Before discussing the substantive issues presented, a brief review of the procedural history in this matter will be helpful. The April 5, 2002 Scheduling Order provides that Fed.R.Civ.P. 26(a)(2) disclosures, including reports from retained experts, shall be served by Plaintiff by August 1, 2002 and by Defendant by September 30, 2002.
On August 5, 2002, Plaintiff moved to extend the Rule 26(a)(2) deadline to September 30, 2002 (doc. 43). On August 28, 2002, this Court granted Plaintiff's motion to the extent that the Rule 26(a)(2) deadline was extended to September 6, 2002 for Plaintiff and to November 1, 2002 for Defendant (doc. 46).
On September 9, 2002, Plaintiff filed his second motion for extension of time to disclose Rule 26(a)(2) experts and reports (doc. 47) — again requesting the deadline be extended to September 30, 2002.
On September 26, 2002, Plaintiff filed his third motion for extension of time to disclose Rule 26(a)(2) experts and reports (doc. 53) — this time requesting the deadline be extended to October 3, 2002.
On the morning of October 10, 2002, Plaintiff filed a certificate of service verifying his filing of a Fed.R.Civ.P. 26(a)(2) report drafted by Plaintiff's expert Dr. Kenneth Blundell. During an October 10, 2002 afternoon conference scheduled to discuss the pending motions, the Court denied as moot those motions filed by Plaintiff regarding extensions of time to file expert reports. The Court then ordered Defendant to file any motion to strike relating to the October 10, 2002 Rule 26(a)(2) expert report of Dr. Blundell by Friday, October 11, 2002. In compliance with the Court's order, Defendant filed a Motion to Strike the expert report on October 11, 2002.
Discussion
• Defendant's Motion to Strike
In support of its Motion, Defendant argues that, under the circumstances presented, Plaintiff's expert report should be stricken as a sanction (1) for failing to timely make the disclosure and (2) for failing to submit the report in compliance with the federal rule.
Rule 26(a)(2)(B) requires that parties disclose the identity of any witness who is retained or specially employed to provide expert testimony and that the disclosure be accompanied by a written report. Each expert report must be in writing and signed by the expert, and must contain: a complete statement of all the expert's opinions and the basis and reasons therefore; the data and information considered by the expert; any exhibits to be used as support for or a summary of the opinions; the qualifications of the expert and all publications authored by the expert in the past ten years; the expert's compensation for his review and testimony; and a list of all other cases in which the expert has testified at trial or at deposition in the past four years.
The disclosure provided by Plaintiff does not comply with Rule 26(a)(2)(B). The only document signed by the expert is a two-page letter, which lacks information regarding Dr. Blundell's qualifications, including his publications, compensation, and prior testimony.
Rule 37(c)(1) provides that a party who, without substantial justification, fails to make the required disclosures shall not, unless such failure is harmless, be permitted to use as evidence at trial any witness or information not so disclosed. In applying Rule 37(c)(1), the Court must first determine whether substantial justification for failing to make the required disclosures exists. Next, the Court must decide whether the failure to disclose is harmless.
"Substantial justification" is satisfied where there exists a genuine dispute concerning compliance. The question is not whether Dr. Blundell is qualified as an expert; rather, the question for the Court is whether the required disclosures set forth in Rule 26(a)(2)(B) were made and, if not, whether there exists substantial justification for the deficiencies. The Court finds Plaintiff has not established that the failure to disclose is substantially justified.
Pierce v. Underwood, 487 U.S. 552, 565-66 (1988).
The Court next must determine whether Plaintiff's failure to comply with the disclosure requirements is harmless. Failure to comply is harmless where there is no prejudice to the party entitled to the disclosure. The expert report in this case was filed over thirty days out of time. When it was filed, it failed to set forth required information regarding Dr. Blundell's qualifications, including his publications, compensation, and prior testimony. Such information is essential for Defendant to prepare an adequate defense to the expert's testimony. This failure, along with the untimeliness of the report, renders the expert report patently defective and, as a result, prejudices the Defendant by placing it at a disadvantage in preparing its case. Upon the facts before the Court in this case, the failure to disclose is not harmless. Plaintiff's designation of Dr. Blundell as an expert witness is stricken.
Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D.Kan. 1995).
• Plaintiff's Motion to File Report Out of Time
As a preliminary matter, Plaintiff fails to specify any legal basis for allowing him to file his expert report out of time. Fed.R.Civ.P. 6(b) provides for an enlargement of time after the expiration of the specified period where the act was the result of "excusable neglect." "Excusable neglect" is an "elastic concept" and the court considers "all relevant circumstances surrounding the party's omission." Four specific factors that courts frequently consider are:
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 394-95 (1993).
the danger of prejudice to the other side;
the length of the delay and its potential impact on the proceedings;
the reason for the delay and whether it was in the control of the party; andwhether the movant acted in good faith.
Id.
A party's control over the circumstances of the delay is "a very important factor, perhaps the most important single factor, in determining whether neglect is excusable." Moreover, the party "seeking to establish excusable neglect must plead and prove it."
Thomas v. Unified Sch. Dist. No. 501, 177 F.R.D. 488, 489 (D.Kan. 1997) (citations omitted).
Fernandez v. U.S., 169 F.R.D. 372, 374 (D.Kan. 1996) (emphasis added).
Simply put, Plaintiff has failed to carry his burden of establishing excusable neglect. In fact, Plaintiff proffers no explanation why he waited until four weeks after the deadline before seeking an extension for his expert designation. Discovery closed in this matter on October 31, 2002 and the pretrial conference is scheduled for November 14, 2002. Defendant has prepared its defense without the benefit of Plaintiff's expert and will be prejudiced by Plaintiff's belated attempt to designate the expert. Because Plaintiff has failed to show excusable neglect, the Motion will be denied.
Accordingly, it is hereby ordered that
Defendant's Motion to Strike the Expert Report of Ken Blundell (doc. 61) is granted; and
Plaintiff's Motion to Extend Time until October 21, 2002 to Designate Kenneth Blundell as an Expert Witness (doc. 70) is denied.
IT IS SO ORDERED.