Opinion
Case No. CV02-023-S-EJL.
January 13, 2003
ORDER
Pending before the Court in the above-entitled matter is Defendant's Motion to Exclude Expert Testimony and Evidence. (Docket No. 16). The parties have exchanged memorandum on the motion and the matter is now ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument. Local Rule 7.1(b).
Defendant's motion filings seek an order from this Court excluding Plaintiff's expert witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2) as well as Local Civil Rule 26.2. (Docket No. 17). Defendant further notes that Federal Rule of Civil Procedure 37(c)(1) provides for "a mandatory sanction where a party has failed to comply with discovery required by Federal Rule of Civil Procedure 26(a)." (Docket No. 17, p. 5). Plaintiff argues the motion should be denied because the report of the architectural expert, Stanley Cole, has been supplied and that the wheelchair expert will be forthcoming as soon as it is received by Plaintiff's counsel. (Docket No. 22).
In this case, the Court issued a Scheduling Order on April 17, 2002 requiring Plaintiff's disclosure of expert witnesses by July 8, 2002. (Docket No. 8). On July 8, 2002 Plaintiff filed a list of four expert witnesses with a brief description of what their testimony would address. (Docket No. 9). The parties stipulated to extend the time for Defendant to submit his expert witnesses to August 22, 2002 and Plaintiff's time for filing a list of rebuttal witnesses by September 23, 2002. (Docket Nos. 10, 11). On August 22, 2002 Defendant made its expert disclosures of Mr. Robert L. Smith, a registered architect. On September 24, 2002 Plaintiff filed a list of five rebuttal experts. (Docket No. 14). On October 17, 2002 Defendant filed the instant motion contesting the sufficiency of Plaintiff's disclosure of rebuttal experts.
Defendant's motion represents that the parties had orally agreed to allow Plaintiff until September 24, 2002 to file their list of rebuttal experts. (Docket No. 17, p. 2).
Defendant asserts the list of rebuttal experts was incomplete in that it failed to provide expert reports of all the experts' opinions and their bases as required by Rule 26 and Local Rule 26.2. Defendant represents a letter was sent to Plaintiff requesting the experts' reports by October 2, 2002. (Docket No. 17, p. 2). At the time this motion was filed, Plaintiff had not responded to the letter or provided the expert reports. Defendant argues Plaintiff's failure to comply with Rule 26 has prejudiced Defendant by preventing Defendant from conducing meaningful expert discovery and forcing Defendant to proceed with a mediation without the benefit of the reports. Thus, Defendant seeks to preclude Plaintiff from presenting at trial, hearing, or in any motion any expert witness or opinion which was not disclosed as required by Rule 26. Plaintiff represents that the report of Mr. Cole was provided to Defendant on November 26, 2002 and that the additional report from the wheelchair expert will be forthcoming. (Docket No. 22). The mediation deadline in this matter was originally set for November 7, 2002 but has been extended twice. (Docket Nos. 15, 21).
DISCUSSION
The disclosure and discovery of expert testimony is governed by Federal Civil Rule of Procedure 26 and Local Civil Rule 26.2(b). These rules may be excused or modified by the Court where good cause is shown. In light of Defendant's concession that they failed to make a timely disclosure of their experts, there is no question the Defendant has violated Rule 26 and Local Rule 26.2(b). The questions remaining before this Court is whether to exclude Defendants' experts and/or impose sanctions on Defendants.
Federal Rule of Civil Procedure 37(c)(1) states:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(c)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion, any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.
A district court is afforded "particularly wide latitude" in exercising its discretion to issue sanctions under Rule 37(c)(1).Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001) (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001)). This particular subsection, implemented in the 1993 amendments to the Rules, is a recognized broadening of the sanctioning power. Id. (citing Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) ("[T]he new rule clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule. . . .")). The Advisory Committee Notes describe it as a "self-executing," "automatic" sanction to "provide a strong inducement for disclosure of material. . . ." Fed.R.Civ.P. 37 advisory committee's note (1993). Courts have upheld the use of the sanction even when a litigant's entire cause of action or defense has been precluded.Id. (citing Ortiz-Lopez, 248 F.3d at 35 (although the exclusion of an expert would prevent plaintiff from making out a case and was "a harsh sanction to be sure," it was "nevertheless within the wide latitude of" Rule 37(c)(1)). Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless.Id.; Fed.R.Civ.P. 37(c)(1).
Based on the parties filings, arguments, and the record, the Court finds the Defendant has been prejudiced by Plaintiff's failure to abide by this Court's order and the Federal Rules of Civil Procedure. Plaintiff's failure to timely disclose their expert witnesses is compounded by its failure to request an extension to the scheduling order from this Court or opposing counsel. Excluding Plaintiff's experts, however, would not allow for this matter to be resolved on its merits. The Court therefore finds it necessary to fashion a remedy which recognizes the seriousness of Plaintiff's violations and the resulting prejudice to Defendant, and yet allowing the issues in this case to be fully resolved. To achieve this result any currently scheduled mediation shall be vacated and Plaintiff is ordered to provide Defendant with any and all expert reports upon receipt of this order. If necessary, the parties are then directed to depose Plaintiff's experts immediately. In the event the parties are unable to agree on times to schedule depositions, the Court will set the date of depositions accordingly. In addition, Plaintiff shall bear all of Plaintiff's costs and attorney fees associated with the filing of the Motion to Exclude Experts. The parties may then reschedule mediation to be completed and a joint written statement filed with the Court on or before March 31, 2003. The statement shall also inform the Court of the parties estimated trial time.
ORDER
Based on the foregoing and being fully advised in the premises, the Court HEREBY ORDERS that Plaintiff's Motion to Exclude Experts (Docket No. 16) is DENIED. The Court ORDERS as follows:
1) Defendant's experts will not be excluded.
2) Plaintiff is ordered to immediately provide Defendant with any and all reports of experts.
3) If necessary, the parties are ordered to arrange for the deposition of experts to be taken immediately. If the parties are unable to agree on a date, the Court will set a date for the taking of depositions.
4) Plaintiff is ordered to pay the costs and attorney fees incurred by Defendant in filing this motion.
5) Any currently scheduled mediation shall be vacated and rescheduled, if necessary, so as to be completed by March 31, 2003 as detailed above.