Opinion
Case No. C08-5147RBL.
April 24, 2009
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE THOMAS BACKE'S DESIGNATION AS EXPERT WITNESS
THIS MATTER is before the Court on Defendants' Motion to Strike Plaintiffs' designation of Thomas Backe as an expert witness [Dkt. #33]. For the reasons set forth below, Defendants' motion is GRANTED.
On August 19, 2008, Plaintiffs identified Mr. Thomas Backe in their initial disclosures as an appraiser who would testify to the value of certain property at issue in this matter. Dec. of Mack, Ex. 1. This initial disclosure did not mention Plaintiffs' intent to use Mr. Backe as an expert witness. Plaintiffs did not submit any other information establishing Mr. Backe's qualifications as an expert as required under FRCP 26(a)(2) at that time.
The deadline for disclosure of expert testimony was set for March 18, 2009 [Dkt. #24]. On March 19, 2009 Defendants received a letter from Mr. Backe demanding that he be paid as an expert witness. Dec. of Mack, Ex. 3. There was no accompanying written report as required under FRCP 26(a)(2)(B), nor was the disclosure made by Plaintiffs' counsel within the deadline established by the Court's order.
As an ordinary fact witness, Mr. Back would receive only $42.75. As an expert witness, Mr. Back was requesting a total of $400.00 (or $100.00 an hour). Dec. of Mack, Ex. 3.
Five days after the disclosure deadline, on March 23, 2009, Plaintiffs' served expert witness disclosures on Defendants. Dec. of Mack, Ex. 6. Mr. Backe was the only witness identified in the tardy expert witness disclosure.
Defendants filed this motion on March 30, 2009, requesting that Mr. Backe be designated as an ordinary fact witness for purposes of his deposition. Plaintiffs' response to that motion was due on April 13, 2009. Local Rule CR 7(d)(3). Plaintiffs failed to file a response or a request for an extension of time.
It is unclear whether Mr. Backe will be called as a witness at trial.
Because Plaintiffs' disclosure of Mr. Backe as an expert witness occurred after the disclosure deadline in violation of FRCP 26(a)(2)(B), and because Plaintiffs failed to timely respond to Defendants' motion, the motion to strike Mr. Backe's expert witness designation is hereby GRANTED.
IT IS SO ORDERED.