Opinion
Civil No. CCB-11-3508
02-26-2015
DALE IHNKEN v. CHARLES JENKINS, et al.
MEMORANDUM ORDER
Charles Jenkins and Larry Smith move to exclude Dale Ihnken's four proposed expert witnesses from testifying, on the ground that Ihnken never disclosed those experts' written reports as Federal Rule of Civil Procedure 26(a)(2)(B) requires. Under Federal Rule of Civil Procedure 37(c)(1), failure to comply with that disclosure requirement precludes presentation of those witnesses as experts at trial, "unless the failure was substantially justified or is harmless." Ihnken carries the burden of demonstrating such substantial justification or harmlessness. See, e.g., Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). Ihnken, however, has not responded to Jenkins' and Smith's motion. He neither contests his failure to disclose his proposed experts' written reports nor carries his burden of excusing that failure. Any disclosure now would surprise the defendants, upsetting their trial preparations. Such prejudice might be curable only by delaying trial and re-opening discovery. Accordingly, Jenkins' and Smith's motion in limine, (ECF No. 56), is GRANTED. Jim Hickey, Chip Cordish, Tim Conder, and Brad Selko will not be permitted to testify at trial as experts. February 26, 2015
Date
/S/_________
Catherine C. Blake
United States District Judge