Opinion
CASE NO. 5:07cv194/RS-EMT.
January 8, 2008
ORDER
Before me is Defendant's Motion To Strike Plaintiffs' Expert Witness (Doc. 26).
Fed.R.Civ.P. 26(a)(2) requires that disclosure of an expert witness must "be accompanied by written report prepared and signed by the witness." Subsection (a)(2)(B) specifies the information which must be included in the report. The rule does not require that a written report be provided only if and when it might be prepared by the expert witnesses. The rule requires that a report be prepared and furnished at the time of the disclosure of the expert witness.
The Joint Report of the Parties' Planning Meeting (Doc. 16) provided for disclosure of Plaintiffs' expert witnesses by November 17, 2007. That deadline was adopted by the Scheduling and Mediation Order. Plaintiffs' counsel's responses, "No written report has been prepared as of the date of this disclosure. Once a written report has been prepared, it will be supplied to counsel"., and "Plaintiffs are not in receipt of Dr. Mark's report at this time but will forward the same to Defendant's counsel(s) immediately upon receipt", simply do not comply with the requirements of Rule 26(a)(2). The requirements of Rule 26(a)(2) are clear. Plaintiffs' counsel not once, but twice, provided an insufficient, if not evasive, response. It was incumbent upon Plaintiffs' counsel to ensure that the proposed expert witness timely prepared a report with all required information. His failure to do so was apparently deliberate and not due to an inadvertent lapse. Prejudice to Defendant is clear. Accordingly, Jane Marks will not be permitted to testify as an expert witness for Plaintiffs.
ORDERED.