Opinion
Case No. 2:00-CV-00774
December 11, 2003
ORDER
Before the Court is Intervenor Plaintiff Crystle Collins' Rule 37(c) Motion in Limine to Exclude Evidence. While the motion is framed as a discovery dispute, it implicitly requests the Court to reexamine its earlier ruling regarding the admissibility of defendant's proposed expert testimony. This Court's April 25, 2003 ruling excluded as unhelpful to the jury the opinion prepared by Dr. David Ranks, but permitted Dr. Noel Gardner to testify based, in part, on the results of tests conducted by Dr. Ranks. Dr. Gardner's testimony is limited by the terms of the order to opinions regarding "the presence or absence of malingering as indicated by Ms. Collins' test results. This testimony may be properly admitted because it will assist the jury to determine the extent, if any, of Ms. Collins' mental and/or emotional injury." April 25, 2003 Order, at 2.
Intervenor Plaintiff contends that it is entitled to the underlying facts and data on which Dr. Ranks relied on forming his opinion in order to prepare for cross-examination of Dr. Gardner. Intervenor Plaintiff is correct. Federal Rule of Civil Procedure 26(a)(2)(B) requires the proponent of expert testimony to provide a report which includes "the basis and reasons" for all opinions to be expressed and "the data or other information considered by the witness in forming the opinions" While Dr. Gardner relied on Dr. Ranks' opinion, rather than on the raw data on which Dr. Ranks' opinion was based, the rule's requirement that the "basis and reasons" underlying expert opinions be disclosed is sufficiently broad to mandate the disclosure requested by Intervenor Plaintiff. Defendant intends to rely on an expert opinion based upon another expert opinion, and Intervernor Plaintiff is entitled to the raw data on which the underlying opinion is based in order to test its reliability, as well as the reliability of the two expert opinions ultimately based on that data.
Intervenor Plaintiff's entitlement to information that has been deliberately withheld by Defendant does not necessarily entitle Intervernor Plaintiff to the relief it requests, however, Intervenor Plaintiff suggests that the appropriate sanction for Defendant's failure to disclose is exclusion of Dr. Gardner's testimony pursuant to Federal Rule of Civil Procedure 37(c)(1). Federal Rule of Civil Procedure 37(c)(1) provides that
A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any witness or information not so disclosed.
Defendant has suggested in oral argument that its good faith belief that Intervenor Plaintiff was not entitled to Dr. Ranks' raw data constitutes a substantial justification for its failure to disclose. The Court agrees. The sanction of exclusion is a severe one, and is inappropriate on the facts of this dispute. Intervenor Plaintiffs entitlement to the data created by Dr. Ranks is better vindicated by immediate disclosure and delay of the pertinent portion of the trial at Intervenor Plaintiffs option.
In order to ensure that Intervenor Plaintiff suffers no prejudice from the delayed disclosure of Dr. Ranks' raw data, the trial currently scheduled to begin February 2, 2004 will be bifurcated into a liability phase and a damages phase. Intervenor Plaintiff shall not put damages at issue in the first phase. Dr. Gardner's testimony will accordingly be admissible only in the second phase. While the liability phase will proceed as scheduled on February 2, 2004, the damages phase will, if required, either proceed immediately thereafter or be postponed for a reasonable period should Intervernor Plaintiff require additional time to prepare for its cross-examination of Dr. Gardner.
CONCLUSION
Intervenor Plaintiff is entitled to the results of Dr. Ranks' testing. Defendant shall provide Intervernor Plaintiff with those results immediately. Dr. Gardner's testimony remains admissible to the extent permitted by this Court's April 25, 2003 ruling. The trial of this matter will be bifurcated: the liability phase will begin as scheduled on February 2, 2004; the damages phase may be delayed a reasonable period or follow immediately on the heels of the damages phase at Intervenor Plaintiffs option.
IT IS SO ORDERED