Opinion
CIVIL ACTION No. 06-2100-CM.
October 23, 2007
MEMORANDUM AND ORDER
Plaintiff Hodgdon Powder Company, Inc. brings this lawsuit against defendant Alliant Techsystems, Inc. for trademark infringement, false designation of origin, and unfair competition. Defendant filed counterclaims, seeking to have plaintiff's trademark registrations canceled. This matter is before the court on Plaintiff's Motion for Leave to File Expert Report Pursuant to Rule 26(a)(2)(B) (Doc. 87).
I. Factual Background
Under the court's scheduling order, plaintiff's expert report was due November 1, 2006 and defendant's expert report was due December 1, 2006. Plaintiff filed its expert report by the deadline, and defendant moved to strike the report. On July 20, 2007, the court granted defendant's motion to strike the report. The court excluded the expert Dr. Arora's report because his opinions and report relied on an unscientific 2006 survey conducted by plaintiff's counsel and did not meet the standards of Federal Rule of Evidence 702 or Daubert. On August 1, 2007, the parties filed a joint motion to continue their August 13, 2007 trial setting because they were working on settlement negotiations. The court granted the joint motion and set trial for October 29, 2007.
Between August 6, 2007 and August 13, 2007, plaintiff had a second survey conducted, which was done at the 2007 Grand American Trap Shoot, and had Dr. Arora prepare a second report, based on the new survey. On September 29, 2007, plaintiff filed the current motion requesting leave to file its second expert report out of time.
II. Legal Standard
Under Federal Rule of Civil Procedure 26(a)(2), the parties must disclose the identity of their expert witnesses and the experts' written reports "at the times and in the sequence directed by the court." Fed.R.Civ.P. 26(a)(2). The purpose of Rule 26(a)(2) is to ensure opposing parties have a reasonable opportunity to prepare an effective cross examination and, if needed, retain their own expert. See Miller v. Prairie Ctr. Muffler, Inc., No. 03-2424-DJW, 2004 WL 2821220, at *1 (D. Kan. Nov. 16, 2004). A party "who `without substantial justification, fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.'" Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 636, 639 (D. Kan. 2001) (citing Fed.R.Civ.P. 37(c)(1)).
As the party seeking to file an untimely expert report, plaintiff bears the burden to establish that the untimely disclosure was substantially justified; if plaintiff fails to meet its burden, it must establish that its untimely disclosure was harmless to defendant. See id. A party's failure to disclose is "harmless when there is `no prejudice to the party entitled to the disclosure.'" Id. (citation omitted). Before excluding expert testimony under Rule 26, the court must consider the following factors:
(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness, if any.Id. ( citing Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)).
III. Discussion
Plaintiff admits that second expert report is untimely, but argues that its untimely disclosure was substantially justified because the Grand American Trap Shoot — the event at which plaintiff conducted its surveys and claims is the best place to conduct an economical survey — only occurs once a year. This, however, does not explain plaintiff's failure to conduct a scientifically sound survey at the 2006 Grand American Trap Shoot or during discovery. Nor does it explain plaintiff's failure to preserve this issue in the pretrial order or request an extension of time to conduct its additional research. Furthermore, plaintiff did not raise the issue when it requested a continuance of the August 13, 2007 trial setting. Instead of requesting an extension of time to conduct additional research, which would have notified defendant of plaintiff's intentions, plaintiff waited until a month before trial before disclosing its second expert report. The court finds that plaintiff's untimely disclosure is not substantially justified.
Because plaintiff's untimely disclosure is not substantially justified, plaintiff must show that its untimeliness does not harm defendant. Plaintiff argues that defendant will not be harmed because defendant was willing to proceed to trial without deposing Dr. Arora before the court excluded his first report. As defendant points out in its response to plaintiff's motion, defendant conducted discovery and took depositions regarding the 2006 survey, but believed deposing Dr. Arora was unnecessary due to the unscientific nature of the survey.
Disclosing Dr. Arora's second report at this late stage of the litigation is prejudicial to defendant. It prohibits defendant from conducting discovery on the 2007 survey and the new report. Without information about the new survey and report, defendant cannot properly prepare its case — it would not have a reasonable opportunity to prepare an effective cross examination, retain its own expert, or file a new Daubert motion. Although plaintiff has offered to present Dr. Arora for deposition, that alone will not cure the prejudice defendant would suffer, and reopening discovery would disrupt the trial. The court does not believe that plaintiff was acting in bad faith, but under the current circumstances, defendant will be greatly prejudiced if plaintiff is allowed to present Dr. Arora's new report. After considering the factors above, the court finds that plaintiff has not met its burden.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Leave to File Expert Report Pursuant to Rule 26(a)(2)(B) (Doc. 87) is denied.