United States District Court, D. Nevada
ORDER Docket No. 33 Docket No. 34
NANCY J. KOPPE, Magistrate Judge.
Before the Court is Defendants' Motion to Strike Plaintiff's Expert Witness Designation, Docket No. 33, and Defendants' Motion to Strike Plaintiff's Expert Witnesses Andrew Cash, M.D. and Eddie LaRue, Docket No. 34. The Court has considered the motions, as well as the respective responses and replies. Docket Nos. 36, 37, 38, 39. The Court finds that these motions are appropriately resolved without oral argument. Local Rule 78-2.
This is a personal injury action arising out of a motor vehicle accident that occurred on March 3, 2011. Docket No. 1-1, at 7. According to Plaintiff, defendant Gloria Dean Davis, a truck driver for defendant Covenant Transportation Group, struck Plaintiff Marshall Monroe's vehicle while he was driving. Id. As a result of the accident, Plaintiff alleges that he sustained injuries to his back, shoulder, neck, wrist, body, limbs, organs and nervous system. Id., at 8. On February 22, 2013, Plaintiff filed the instant action in the District Court for Clark County, Nevada. Id., at 1. Thereafter, on May 16, 2013, Defendants removed the case to this Court. Docket No. 1.
On July 25, 2013, the Court approved the parties' Discovery Plan and Scheduling Order. Docket No. 18. On October 30, 2013, the Court granted an extension of discovery deadlines. Docket No. 20. On January 27, 2014, the parties filed a second request to extend discovery deadlines. Docket No. 23. The Court granted the parties' request, and extended the expert disclosure deadline to April 10, 2014, and the rebuttal expert deadline to May 9, 2014. Docket No. 24, at 2.
On April 10, 2014, Plaintiff disclosed Stan Smith, Ph.D, and William Morrison, as expert witnesses, but failed to produce an expert report from either one. Docket No. 33, at 5. On May 9, 2014, Plaintiff disclosed Andrew Cash, M.D., as an expert rebuttal witness. Docket No. 34, at 5. Plaintiff also indicated that he intended to name Eddie LaRue as an "investigator/surveillance expert." Id. Discovery closed in this matter on June 9, 2014. Docket No. 24, at 2.
A. Motion to Strike Plaintiff's Expert Stan Smith, Ph.D
Defendants received Plaintiff's initial expert disclosure on April 10, 2014. Docket No. 33, at 5. This disclosure identified Stan Smith, Ph.D as one of Plaintiff's experts. Id. Plaintiff's disclosure did not contain an expert witness report for Dr. Smith. Id. In their motion, Defendants ask the Court to strike Dr. Smith as an expert witness for Plaintiff pursuant to Fed.R.Civ.P. 37(c)(1). Id., at 6. In support, Defendants observe that Plaintiff's Fed.R.Civ.P. 26(a)(2) disclosure was untimely, insofar as Plaintiff's expert disclosure did not include an expert report for Dr. Smith. Id.
Unless otherwise ordered by the court, an expert witness disclosure "must" be accompanied by a written report. Fed.R.Civ.P. 26(a)(2)(B). The rule is explicit as to what the expert's report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Id. Failure to provide a written report with an expert witness disclosure renders the disclosure inadequate. Oliva v. Nat'l City Corp., 2010 U.S. Dist. LEXIS 56362, *9 (D. Nev. May 12, 2010) ("As plaintiffs failed to provide the required written report with their disclosure, the disclosure is incomplete") ( citation omitted ).
Pursuant to Fed.R.Civ.P. 37(c)(1), a party that, without substantial justification, fails to provide information or identify a witness as required by Rule 26(a) may not use testimony from that witness or the undisclosed information as evidence at trial, at a hearing, or in connection with a motion, unless the failure to disclose was harmless. Among the factors that may properly guide a district court in determining whether a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence. Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed.App'x 705, 713 (9th Cir. 2010); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) ("Rule 37(c)(1)... was intended to foster stricter adherence to discovery requirements and to broaden the power of the district courts to sanction violations of Rule 26").
Since Plaintiff failed to provide the report of Dr. Smith within the deadlines set by this Court, the federal rules require that Plaintiff be precluded from using Dr. Smith as an expert witness unless Plaintiff can demonstrate that such failure was "harmless" or "substantially justified." Fed.R.Civ.P. 37(c)(1). Here, Defendants show prejudice by representing that without the report, they were unable to properly evaluate Plaintiff's expert to determine whether to retain a rebuttal expert witness by the May 9, 2014, deadline. Id., at 7. Defendants also state that they were unable to adequately prepare for the deposition of Dr. Smith, "or even determine if the expense of conducting" the deposition was warranted. Id. Defendants maintain that this prejudice cannot be cured, since "as a result of the delayed disclosure, Plaintiff's experts now have the advantage of reviewing Defendants' expert reports and opinions before providing their initial expert disclosures." Id., at 8. Defendants additionally note that, when counsel for Defendants asked about the omitted expert reports, "Plaintiff failed to provide a substantial justification for his untimely expert disclosures." Id.
In response, Plaintiff states that Dr. Smith's expert report - which is dated May 9, 2014, and was not received by Defendants until May 22, 2014 (Docket No. 39, at 4) - should be admitted because it was "inadvertently not sent to opposing counsel, by mere inadvertence." Docket No. 36, at 2. Dr. Smith's expert report, however, was due on April 10, 2014, along with the expert disclosure. As it was not even prepared until May 9, 2014, the Court finds that Plaintiff's failure to produce it was not, in fact, due to a misunderstanding within his counsel's office about what to do with the report. Id. The Court therefore finds that Plaintiff's failure to include Dr. Smith's expert report with his expert disclosure was not "substantially justified." Fed.R.Civ.P. 37(c)(1).
Plaintiff additionally maintains that Defendants have not been harmed at all, insofar as Defendants "are seasoned experienced attorneys, who most certainly have anticipated the contents of [Dr. Smith's] report." Docket No. 36, at 2. In reply, Defendants state that, "[t]o the contrary, Defendants did not anticipate the significant and substantial damages alleged in Dr. Smith's report, and cannot be expected to foresee and respond to expert opinions that have not been produced[;]... [n]o amount of legal experience makes it possible to read Plaintiff's experts' minds." Docket No. 39, at 5.
Plaintiff further asserts that there is no "genuine prejudice" in this matter, and reasons that the trial date "could easily be continued" to accommodate Plaintiff's failure to timely provide an expert report. Docket No. 36, at 3. Plaintiff's response ignores Defendants' specific description in their motion as to how Defendants have actually been prejudiced; namely, their inability to name rebuttal experts, as well as their inability to adequately prepare for the deposition of Dr. Smith, "or even determine if the expense of conducting" the deposition was warranted. Docket No. 33, at 7. This is no trivial matter, considering that discovery closed in this matter prior to Defendants' having filed their reply in support of their motion. Plaintiff's assertion to the contrary not only fails to shield Plaintiff from his own lack of diligence in providing a report, but highlights the very purpose behind Rule 26(a)(2)(B)'s requirement of a written report: to correct a deficiency in the former rule which "rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness." Rule 26 advisory committee's note (1993).
Finally, Plaintiff's contention that "the affidavit of learned able defense counsel casts prejudice in general phraseology, nothing specific" is misplaced; "the burden is on the party facing sanctions to prove harmlessness." Yeti by Molly Ltd., 259 F.3d at 1106. Here, Plaintiff has not met his burden to demonstrate that the failure to include an expert report in his disclosure of Dr. Smith as an expert witness was "harmless" or "substantially justified." Fed.R.Civ.P. 37(c)(1). The Court therefore grants Defendants' motion to strike Dr. Smith as an expert witness.
B. Motion to Strike Plaintiff's Expert William Morrison
As described above, Defendants received Plaintiff's expert disclosure on April 10, 2014. Docket No. 33, at 5. This disclosure identified William Morrison as one of Plaintiff's experts. Id. Plaintiff's disclosure did not contain an expert witness report for Mr. Morrison. Id. Defendants seek to strike Plaintiff's expert Mr. Morrison pursuant to Fed.R.Civ.P. 37(c)(1), on the ground that Plaintiff's Fed.R.Civ.P. 26(a)(2) disclosure was untimely, insofar as Plaintiff's expert disclosure did not include an expert report for Mr. ...