Opinion
No. 02-2444-CM
November 17, 2003
ORDER
Pending before the Court are Defendant's Motion to Strike Plaintiffs Expert Terry Cordray (doc. 23) and Defendant's Motion to Strike Plaintiffs Expert John Ward (doc. 29) on grounds that Plaintiff failed to serve proper and/or timely disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(B). For the reasons stated below, Defendant's motions are denied.
Relevant Background
Plaintiffs expert disclosures originally were due August 15, 2003. On September 2, 2003, Defendant received an expert report from Plaintiff's rehabilitation expert Terry Cordray. The report failed to contain a listing setting forth Cordray's qualifications; publications authored by him in the past ten years; his compensation for review and testimony; and a list of other cases in which he has testified at trial or deposition in the past four years. The missing information was sent to Defendant on September 17, 2003. On September 18, 2003, Defendant received an expert report from Plaintiffs economic expert John Ward.
Discussion
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires parties to disclose written reports for all of their expert witnesses "at the times and in the sequence directed by the court." The purpose of Rule 26(a)(2) is to require disclosure of expert testimony sufficiently in advance of trial so that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses. A party who fails to make the required disclosures without substantial justification, unless such failure is harmless, will not be permitted to use as evidence at trial any witness or information not so disclosed.Based on these rules, and given there is no dispute the Cordray and Ward expert disclosures failed to comply with the 26(a)(2) requirements, the Court first must determine whether substantial justification exists for Plaintiffs failure to make the required disclosures in a timely and complete fashion. If the court determines Plaintiff was not substantially justified, then the court next must determine whether Plaintiffs failure to comply with the disclosure requirements was harmless.
Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 636, 639 (D. Kan. 2001).
Id.
In this case, Plaintiff advances no justification for failing to timely disclose expert reports. Rather, Plaintiff merely argues Defendant is unable to show any legitimate prejudice or surprise by Plaintiffs failure to disclose the complete reports in a timely manner.
Failure to disclose is considered harmless when there is "no prejudice to the party entitled to the disclosure." The burden to establish harmlessness is on the party who failed to make the required disclosure, which, in this case, is Plaintiff.
Id.
Id.
Defendant argues the untimely reports have placed Defendant at a disadvantage in preparing its case. Plaintiff disagrees. In support of his argument, Plaintiff states that as of September 18, 2003 — the date all Plaintiffs expert disclosures were complete — no oral discovery had been taken of any witness or party, including that of Plaintiff. Thus, Plaintiff argues the untimely disclosures did not prohibit Defendant effectively cross-examining Plaintiff or any other witness during deposition. Plaintiff further argues that the disclosures were made prior to Defendant's expert designation deadline; thus, Defendant had in its possession all Plaintiffs expert information at the time Defendant designated its own experts.
Based on the facts presented, the Court finds Plaintiff satisfactorily has carried his burden to demonstrate that Defendant has suffered no legitimate prejudice or surprise by Plaintiffs failure to disclose the complete reports in a timely manner. Accordingly, Defendant's Motions are denied.
Compare, Sowell v. United Container Machinery, Inc., 2002 WL 31466439 (D. Kan. 2002) (court found untimely report prejudiced defendant where plaintiff granted three previous extensions of time to file expert report, expert report filed thirty days out of time after last extension and, at the time court ruled on motion, report still failed to set forth information required by Rule 26(a)(2)).
IT IS SO ORDERED.