Opinion
Civil Action No.: 5:06CV112.
October 23, 2007
ORDER
On October 19, 2007, Plaintiffs filed their Motion and Memorandum in Support "To Exclude Defendants' Expert Witness, Dr. Lawson F. Bernstein" because his report of a Court-authorized IME of Plaintiff was received by counsel for Plaintiffs two days after the ordered date of October 10, 2007. [Docket Entries 87 and 88.] Plaintiffs cite no actual prejudice suffered by them because of their receipt of the report on October 12th instead of October 10th as required under the Court's order.
This matter is not complex and does not require a response or hearing.
Plaintiffs do not assert any wilfulness incident to the failure to provide the report by October 10th. Plaintiffs do not assert they suffered any actual prejudice by the failure to provide the report by October 10th. While Plaintiffs cite heavily to FRCivP 35(b)(1), 16(f) and 37(b)(2)(B) and (D), they ignore the discretion of the Court that is built into the enforcement of those rules. Absent prejudice or disadvantage, the rules are not to be arbitrarily applied solely to prevent one party or another from presenting his case.
Plaintiffs now have the report in hand.
For the reasons stated herein, Plaintiffs' Motion To Exclude Defendants' Expert Witness, Dr. Lawson F. Bernstein [Docket Entry 87] on the ground that his report was received after October 10, 2007 (to wit: received on or about October 12, 2007) is DENIED.
It is so ORDERED.
The United States Court Clerk for the Northern District is directed to provide a copy of this order to counsel of record.