Opinion
Case No. 04 C 50457.
October 13, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the court on a series of Plaintiffs' and Defendant's Motions that all focus on problems related to the disclosure of Defendant's Rule 26(a)(2) expert, Dr. Soriano. For the reasons stated below, the court finds the following: (1) Plaintiffs' Motion to Strike Opinions and Reports of Dr. Soriano (or Compelling Production of a Complete Testimony List) is denied in part and granted in part; (2) Plaintiffs' Motion to Extend Time for Discovery is denied, except as provided in the Memorandum Opinion and Order; (3) Defendant's Motion to Strike is denied; (4) Defendant's Motion to Quash is denied; and (5) Defendant's Motion to Disqualify is denied
I. History
On July 20, 2005, which was the court's established fact discovery cut-off date, the court established a Scheduling Order for expert disclosures. Plaintiffs waived disclosure of an expert. Defendant was given until September 2, 2005 to disclose an expert and to produce Rule 26(a)(2) expert disclosures. Time to depose Defendant's expert was not established as Plaintiffs' counsel waived this option.
Parties mistakenly identified September 15, 2005 as the fact discovery cut-off date in their briefs. The court has reviewed recordings of the July 20, 2005 discovery conference, and no extension was given for fact discovery. At the hearing, the court explained that the only extension being made was for the disclosure of Defendant's Rule 26(a)(2) expert.
On August 12, 2005, Defendant disclosed Dr. Soriano as a Rule 26(a)(2) expert. Though fact discovery was closed, Plaintiffs sent a Request for Production with regard to Dr. Soriano on August 16, 2005 and a Supplemental Request on September 16, 2005. Apparently, Plaintiffs were dissatisfied with Dr. Soriano's expert disclosures, as the first Request for Production largely requested materials required to be disclosed by Rule 26(a)(2). In addition, Plaintiffs requested copies of 1099 forms received by Dr. Soriano for compensation paid to him by State Farm Mutual Insurance Company. Defendant apparently refused to produce the 1099's without a court order. Plaintiffs' Supplemental Request again requested 1099 forms issued to Dr. Soriano, but expanded the request beyond State Farm to other entities.
In a flurry of activity preceding the court's Final Pre-Trial Conferences set for September 21, 2005 and October 7, 2005, Plaintiffs moved to extend time for discovery and strike Dr. Soriano's expert disclosure. Defendant moved to strike Plaintiffs' Supplemental Production Requests (and quash Plaintiffs' pursuit of the 1099's) and moved to disqualify Plaintiffs' lead counsel, Mr. Clark, stating Mr. Clark had previously represented Defendant's expert, Dr. Soriano. The court heard oral arguments on the motions on October 7, 2005.
II. Analysis
It is impossible to untangle these discovery motions. Plaintiffs should have moved to Strike the expert report of Dr. Soriano from the start, but instead Plaintiffs pursued the missing information from the report by propounding untimely production requests that sought materials not required by Rule 26(a)(2), i.e., Dr. Soriano's 1099's. Dr. Soriano's report is undeniably deficient under Rule 26(a)(2)(B) because it fails to fully disclose a list of cases in which Soriano had "testified at trial or by deposition within the preceding four years," as required by Rule 26(a)(2)(B). See, e.g., Palmer v. Rhodes Machinery, 187 F.R.D. 653, 656 (N.D. Okla. 1999) (quoting Nguyen v. IPB, Inc., 162 F.R.D. 675, 681 (D. Kan. 1995) ("The requirements of Rule 26(a) are mandatory as to any expert retained to testify. If the expert is unable or unwilling to make the disclosures he should be excluded as a possibility for retention as an expert witness in the case"). Nonetheless, Plaintiffs remain willing to take production of 1099's in lieu of the required Rule 26(a)(2)(B) case list.
Evidence presented indicates that Dr. Soriano testifies at fifty to seventy-five depositions a year. Defendant's report discloses three cases, and these were not accompanied by case numbers.
Plaintiffs' counsel stated at the October 7, 2005 Final Pre-Trial Conference that he would accept Dr. Soriano's 2001 and 2004 1099's (by a date certain) in lieu of a Rule 26(a)(2)(B) case list.
Ordinarily, the court would not allow Plaintiffs' untimely production request for materials such as 1099's, which are outside the scope of Rule 26(a)(2)(B). In the court's view, the Rule provides sufficient discovery, the limitation cuts down on discovery costs, and the parties have the opportunity to depose the expert and clear up any unsettled matters at a later time. This case, however, presents a unique situation as Plaintiffs have waived the opportunity to depose Defendant's expert, and have crafted an alternate means of discovering required 26(a)(2)(B) disclosures.
Since it is the preference of the court to keep this case moving towards trial rather than striking Defendant's expert report and starting expert discovery anew, the court accepts Plaintiffs' alternative and denies Defendant's Motion to Quash Plaintiffs' Pursuit of Dr. Soriano's 1099's and Defendant's Motion to Strike Plaintiffs' Second Supplemental Request for Production and Interrogatories. Defendant is ordered to produce Dr. Soriano's 2001 and 2004 1099's by November 11, 2005. Parties are to submit an Agreed Protective Order to the court regarding production of 1099's by November 4, 2005. Plaintiffs' Motion to Extend Time for Discovery is denied except as to the production of Dr. Soriano's 2001 and 2004 1099's by November 11, 2005.
In the alternative to producing Dr. Soriano's 1099's, Defendant may produce an expert report in complete compliance with Rule 26(a)(2)(B) by November 11, 2005. Accordingly, Plaintiffs' Motion to Strike Opinions of Reports of Dr. Soriano (or Compelling Production of a Complete Testimony List) is denied in part and granted in part. As the court is also of the general belief that two wrongs do not make a right, the court confines this ruling to the unique circumstances of this case. The court will not hesitate to strike inadequate expert reports and exclude opinion testimony in future cases, or in this case, if Plaintiffs and Defendant fail to comply with the court's Order.
The only remaining motion is Defendant's Motion to Disqualify Attorney Clark based on Clark's previous representation of Dr. Sariano. Based on Attorney Clark's Affidavit filed with the court on September 29, 2005, the court detects no conflict of interest arising out of the prior representation of Soriano. Moreover, the court notes that Dr. Sariano is not a party to this case. He is a named Rule 26(a)(2) expert — named by Defendant with full knowledge of Attorney Clark's past representation of Dr. Soriano. The court cannot allow parties to "conflict out" opposing counsel simply by selecting an expert. The court would disqualify Dr. Soriano from testifying as Defendant's expert before it would disqualify lead counsel in this case. Defendant's Motion to Disqualify is denied.
III. Conclusion
For the foregoing reasons, Plaintiffs' Motion to Strike Opinions and Reports of Dr. Soriano (or Compelling Production of a Complete Testimony List) is denied in part and granted in part. Defendant is to produce Dr. Soriano's 2001 and 2004 1099's or a complete 26(a)(2) report by November 11, 2005. Plaintiffs' Motion to Extend Time for Discovery is denied, except as to the production of 1099's or a complete 26(a)(2) report by November 11, 2005. If 1099's are to be produced by Defendant, an Agreed Protective Order is to be submitted to the court by November 4, 2005. Defendant's Motion to Quash and Defendant's Motion to Strike are denied. Defendant's Motion to Disqualify is denied.