United States District Court, D. Nevada
ORDER REGARDING PLAINTIFF'S EXPERT AND REPORT
(ECF NO. 23)
P. GORDON UNITED STATES DISTRICT JUDGE.
Barbie Morgan brings a negligence claim against defendant
Best Buy Co., Inc. Best Buy argues in its motion for summary
judgment that Morgan's causation expert, Dr. Byers,
should be excluded because Morgan failed to timely disclose
her report. Best Buy also contends that Dr. Byers is not
qualified to testify as to Morgan's injuries because her
background is not in orthopedics.
Best Buy's request to exclude Dr. Byers or her report
because the late disclosure was not prejudicial to Best Buy,
there is a public interest in resolving matters on the
merits, and lesser sanctions exist. I extend the rebuttal
expert witness deadline for Best Buy to disclose a rebuttal
expert to Dr. Byers, if it chooses to, to 30 days after I
rule on Dr. Byers's qualifications. Because Best Buy
raised its qualifications argument for the first time in its
reply brief, I grant Morgan 14 days from this order to file a
supplemental opposition on that issue alone.
Excluding Dr. Byers is inappropriate.
party discloses an expert witness past the court-ordered
deadline, then excluding the expert from trial is an
available sanction. However, if the late disclosure or failure
to disclose was harmless or substantially justified, then the
expert may testify at trial. Under Wendt v. Host
International Inc., I must consider five factors in
deciding if a sanction is appropriate: (1) the public
interest in resolving litigation quickly, (2) docket
management, (3) prejudice to the defendant, (4) the public
policy favoring a decision on the merits, and (5) the
availability of lesser sanctions. When the exclusion
effectively dismisses the case, I must consider whether the
noncompliance involved willfulness, bad faith, or
did not disclose her expert report by the
deadline. Instead, the report was sent to Best Buy
six days later. Best Buy seeks to exclude Dr. Byers from
trial because of this six day delay. Morgan responds that the
deadline was extended because she filed her motion for
summary judgment. Alternatively, she contends that she can
still call this witness as a rebuttal expert.
Dr. Byers is not warranted here. Although Morgan failed to
timely disclose Dr. Byers's report, she disclosed Dr.
Byers's name and curriculum vitae by the deadline and
then sent the report six days later. This noncompliance was
harmless, and Best Buy presents no evidence that the late
disclosure was willful or made in bad faith. Although Morgan
may be at fault for the late disclosure, lesser sanctions are
parties agree that an expert is required in this case to show
causation between a breach of duty and Morgan's
injury. Thus, excluding Dr. Byers would result in
the case being dismissed. Under the Wendt factors,
excluding Dr. Byers is not appropriate. The public interest
in resolving matters quickly and management of the docket
will be unaffected by allowing Dr. Byers to testify. The
parties are not on the eve of trial. The public policy of
deciding cases on the merits favors allowing Dr. Byers to
testify, especially given the harmless violation and the
amount of time before trial.
therefore deny Best Buy's request to exclude Morgan's
expert witness. To mitigate any prejudice towards Best Buy, I
will extend the rebuttal expert deadline for 30 days after my
ruling on whether to exclude Dr. Byers for Best Buy based on
her qualifications. That way, Best Buy may disclose an expert
rebutting Dr. Byers if it chooses to do so.
Dr. Byers's Qualifications
Buy also seeks to exclude Dr. Byers because it believes that
she is unqualified to evaluate the causation of Morgan's
injuries. Dr. Byers's background is in oncology and
immunology, not in orthopedics. However, Best Buy raised this
argument for the first time in its reply. I do not usually
consider arguments initially raised in a reply. But given the
specter of a future Daubert motion, I will consider
Best Buy's qualifications argument. In order to properly
consider this issue, I grant Morgan 14 days to file a
supplemental opposition addressing this issue only.
THEREFORE ORDERED that plaintiffs expert, Dr. Byers, and her
report will not be excluded under Rule 37(c)(1). The rebuttal
expert deadline will be extended for 30 days after I rule on
Dr. Byers's qualifications.
FURTHER ORDERED that Morgan has 14 days from entry of this
order to file a supplemental opposition addressing Best
Buy's argument about Dr. ...