Opinion
Case No.: 2:19-cv-01326-APG-NJK
06-30-2020
CURTIS WILKERSON, et al., Plaintiff(s), v. MAIKA ABRIGO, Defendant(s).
Order
[Docket No. 36]
Pending before the Court is Defendant's motion to strike Plaintiffs' untimely expert disclosure. Docket No. 36. Plaintiffs filed a response in opposition. Docket No. 38. Defendant filed a reply. Docket No. 40. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion to strike is DENIED.
I. BACKGROUND
This case involves Plaintiffs' state law claims of negligence arising out of a car accident. The deadline for initial expert disclosures expired on April 3, 2020. Docket No. 21 at 4. On that same date, Plaintiffs filed a motion to extend various deadlines, including the initial expert disclosure deadline. Docket No. 27. The motion was denied with respect to the initial expert disclosure deadline. Docket No. 31; see also Docket No. 35 (overruling objection to that order). Nonetheless, Plaintiffs disclosed Dr. David Oliveri as an expert on April 16, 2020. See Docket No. 36 at 9-75. Plaintiffs supplemented that disclosure on May 12, 2020. See id. at 80-111.
The deadline for rebuttal expert disclosures is currently set for November 6, 2020. Docket No. 31 at 2. The discovery cutoff is set for December 7, 2020. Id.
The parties are before the Court now on Defendant's motion to strike Dr. Oliveri as an expert in this case.
II. STANDARDS
A party must disclose the expert witnesses she intends to use at trial, along with their opinions. Fed. R. Civ. P. 26(a)(2)(A)-(B). Such disclosure must be made at the times and in the sequence that the Court orders. Fed. R. Civ. P. 26(a)(2)(D). Courts are empowered to strike expert witnesses who are not timely disclosed. See Fed. R. Civ. P. 37(c)(1).
Such relief is not warranted, however, when the opposing party makes a showing of substantial justification or harmlessness. See id. A disclosure violation is sufficiently harmless to avoid an exclusionary sanction when the disclosure is made long enough before the discovery cutoff to enable the opposing party to depose the expert and challenge his expert report. Pacific Indem. Co. v. Nidec Motor Corp., 203 F. Supp. 3d 1092, 1097 (D. Nev. 2016) (collecting cases). In practice, the harsh sanction of excluding an improperly disclosed witness is generally limited to extreme situations because courts universally recognize the strong preference for deciding cases on their merits when possible. Carisbrook Asset Holding Trust v. SFR Invs. Pool 1, LLC, 2019 WL 2393614, at *2 (D. Nev. June 6, 2019) (citing Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 243 (D. Nev. 2017)).
III. ANALYSIS
Although the Court shares some of Defendant's concerns regarding the sequence of events in this case, the circumstances do not warrant exclusion of Dr. Oliveri as an expert witness. As noted above, the disclosures at issue were made relatively close to the expiration of the subject deadline and ample time remains within the discovery period for Defendant to depose Dr. Oliveri, obtain a rebuttal expert, and otherwise challenge his opinions on their merits. Indeed, the discovery cutoff remains almost six months away. Given these circumstances, the extreme remedy of an exclusionary sanction is not warranted.
In instances in which the Court finds exclusion too harsh a remedy, it can consider imposing lesser sanctions, such as awarding attorney's fees. See, e.g., Pacific Indemnity, 203 F. Supp. 3d at 1097. In this case, Defendant's motion does not seek any alternative sanction, so the Court declines to consider alternative sanctions. See, e.g., Ousdale v. Target Corp., 2018 WL 7021942, at *1 n.2 (D. Nev. Nov. 26, 2018). --------
IV. CONCLUSION
Accordingly, the motion to strike Dr. Oliveri as an expert witness is DENIED.
IT IS SO ORDERED.
Dated: June 30, 2020
/s/_________
Nancy J. Koppe
United States Magistrate Judge