Summary
requiring the expert to be made available for a deposition before trial and finding, as a result, that "the belated disclosure of [the expert's] report is harmless"
Summary of this case from Torres v. Wal-Mart Stores E.Opinion
Case No. 6:99-cv-1268-Orl-KRS.
January 24, 2001
Robert Dennis Melton, Joseph K. Birch, Orlando Fl. and Eileen E. Buholtz, Cheryl Loria-Dinolfo, Connors Corcoran, LLP, Rochester, NY., for plaintiff LORI J. ELLISON and THOMAS ELLISON.
Craig L. Brains, David A. Sierra Associates, Orlando, FL, Louise A. Boillat, Rochester, NY., Sheryl S. Zust, Wyatt Tolbert, P.A., Daytona Beach, Fl., Rutledge Bradford, Jessica J. Recksiedler, Thompson Reed, L.L.C., Maitland Fl., for defendant ROBERT BARTON WINDT.
ORDER
This cause came on for consideration after oral argument on the following motion filed herein:
MOTION: MOTION TO STRIKE THE REPORT AND PROHIBIT THE TESTIMONY OF DEFENDANTS COMPULSORY MEDICAL EXAMINATION EXPERT DR. JOSEPH URICCHIO (Doc. No. 126)
FILED: DECEMBER 13, 2000
I. PROCEDURAL HISTORY.
On March 3, 2000, this Court issued a scheduling order, which set the deadline for disclosing expert reports as May 31, 2000 for the plaintiffs, Lori and Thomas Ellison, and June 30, 2000 for the defendant, Robert Barton Windt. (Doc. No. 45).
I subsequently extended the expert witness disclosure dates at the request of the parties. As extended, the Ellisons were required to disclose their expert witness reports on June 30, 2000 and Windt was required to disclose his expert witness reports on July 31, 2000. (Doc. No. 70). Pursuant to a request made during a hearing, I also allowed the Ellisons to disclose the report of a rebuttal expert witness on or before July 31, 2000. ( Id.; Doc. No. 66). Windt subsequently sought a change in the disclosure dates so that his expert would be able to consider all of the expert reports tendered by the Ellisons before rendering his opinion. (Doc. No. 75). I denied this request. (Doc. No. 76).
Thereafter, on July 28, 2000, Windt again sought an enlargement of time to disclose his expert's report, stating that he had not received all of the medical records of Lori Ellison. (Doc. No. 83). The Ellisons stated that they had furnished all medical records in their possession to the defense. (Doc. No. 84). I denied the motion for a further enlargement of time in an order dated August 9, 2000. (Doc. No. 85).
Defense counsel stated that she mailed the motion on July 28, 2000. It was not received by the Clerk of Court. Defense counsel filed a duplicate copy of the motion on August 7, 2000. (Doc. No. 82).
On August 11, 2000, Windt filed notice of the disclosure of the report of his expert, Dr. Uricchio. The report consisted of nine pages, dated July 20, 2000, and a one page addendum dated September 1, 2000. On January 18, 2001, Windt disclosed an additional one page addendum to Dr. Uricchio's report, dated September 1, 2001.
Dr. Urrichio stated his opinion in the report dated July 20, 2000. "Deviation from the substance of the report will not be allowed on direct examination of the expert" by counsel for Windt. (Dcc. No. 45 at 2).
On December 13, 2000, the Ellisons filed a motion to strike Dr. Uricchio's report and preclude him from testifying at trial due to the late disclosure of his expert witness report. (Doc. No. 126). In opposition to the motion, Windt argued that the Ellisons were not prejudiced by the late disclosure, because there was ample time to depose Dr. Uricchio between the date the report was belatedly disclosed and the discovery completion date, which was September 22, 2000. Further, Windt argued that striking a party's expert should be a sanction of last resort. (Doc. No. 127).
II. LEGAL PRINCIPLES.
Federal Rule of Civil Procedure 26(a)(2) governs the procedure for disclosing expert reports. Federal Rule of Civil Procedure 37(c)(1) provides the sanctions that can be imposed if a party does not comply with the Rule 26(a)(2) disclosure requirements. Rule 37(c)(1) states, in part, as follows:
[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or any information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.
"'Substantial justification requires justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request. The proponent's position must have a reasonable basis in law and fact. The test is satisfied if there is [a] genuine dispute concerning compliance.'" Chapple v. Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997) (quoting Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995)). "Failure to make the required expert witness disclosures is harmless 'when there is no prejudice to the party entitled to the disclosure.'" Id. (quoting Nguyen, 162 F.R.D. at 680).
III. ANALYSIS.
There is no dispute that Windt disclosed Dr. Uricchio's report after the July 31, 2000 due date. Windt's counsel argues that the belated disclosure was substantially justified because the expert did not have medical records he needed to render an opinion before July 31, 2000, and because she submitted a motion for enlargement of time before the due date.
In the motion for enlargement of time, Windt did not provide an adequate explanation for why he was unable to obtain medical records for his expert's review in sufficient time for the expert to complete his report and timely disclose it. Further, it appears that Dr. Uricchio's initial report was prepared on July 20, 2000, sufficiently in advance of the due date to permit that portion of his report to be timely disclosed. Therefore, I find that the lack of medical records is not substantial justification for the untimely disclosure.
I also find that the mailing of the motion for enlargement of time is not substantial justification for the untimely disclosure. Windt's counsel did not take adequate steps to ensure that the motion was received by the Court before the due date. She also did not caption the motion as an emergency, indicating that it required immediate attention before expiration of an impending deadline. Pendency of a motion for enlargement of time does not relieve the movant of the responsibility to comply with an existing deadline. If it did, parties could routinely ignore established deadlines by filing motions for enlargement of time on or shortly before a deadline. Cf. Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1184 n. 15 (11th Cir. 1994)("We do not want to encourage filing any motion for an extension of time on the last day that a response is due pursuant to a previous judicial order.").
I turn next to the question of whether the belated disclosure was harmless. The Ellisons argue that they are prejudiced because they did not depose Dr. Uricchio based on their assumption that I would preclude his testimony because his report was not timely disclosed. They also contend that Dr. Uricchio had the unfair advantage of reviewing the reports of the Ellisons' experts before rendering his opinion.
Dr. Uricchio's initial report and addendum were disclosed less than two weeks after the due date. When the report was disclosed, the Ellisons had ample time remaining in the discovery period to depose Dr. Uricchio. They did not promptly seek an order precluding the use of Dr. Uricchio's opinion. Rather, they chose to wait until well after the close of discovery to move to strike Dr. Uricchio as a witness. When, as here, a party fails to promptly seek enforcement of his rights, any prejudice suffered arises largely from the party's own inaction. Cf. GLS v. Dow Chemical Co., Civ. A. No. 87-3735, 1989 WL 144056 (E.D. Pa. Nov. 21, 1989) (motion to compel further discovery regarding an expert's opinion denied because it was filed almost seven months after the discovery deadline and almost seven months after the untimely disclosure of the expert's report).
The Ellisons' argument that Windt improperly withheld Dr. Uricchio's report until Dr. Uricchio could review the opinions of the Ellisons' experts is not supported by the record. At the hearing on the motion, Windt's counsel stated that she had not provided copies of the reports of the Elllsons' experts to Dr. Uricchio. The Ellisons did not offer any evidence to rebut counsel's representation.
I find that the belated disclosure of Dr. Uricchio's report is harmless, provided that the Ellisons are given an opportunity to depose Dr. Uricchio before trial. Accordingly, I will require that Windt produce Dr. Uricchio for a deposition before trial begins in this case.
It is, therefore, ORDERED that the Motion to Strike the Report and Prohibit the Testimony of Defendant's Compulsory Medical Examination Expert Dr. Joseph Uricchio (Doc. No. 126) is DENIED. It is further ORDERED that Windt shall immediately provide two dates before the start of trial in this case on which Dr. Uricchio is available to be deposed.
DONE and ORDERED in Orlando, Florida this 24th day of January, 2001.
KARLA R. SPAULDING UNITED STATES MAGISTRATE JUDGE
copies furnished to: Counsel of Record
Unrepresented Parties