United States District Court, D. Idaho
ROBERT W. HILBORN AND JEAN ANNE S. HILBORN, Plaintiffs,
METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE CO., Defendant.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it several pre-trial motions. The Court will address each below.
1. Plaintiffs' Motion in Limine (Dkt. 84)
Plaintiffs ask the Court to exclude Jay Straughan from testifying as an expert witness at trial. They also ask the Court to limit expert witness Shane Hartgrove's testimony "to the facts and opinions timely made part of the record." Plf. Br. at 3, Dkt. 84.
With respect to Hartgrove, Plaintiffs simply suggest that "it is anticipated that Mr. Hartgrove may be asked to go beyond his timely disclosure by testifying regarding additional facts and/or opinions not properly disclosed within the Court's scheduling Order." Plf. Br. at 2, Dkt. 84. No order in limine is needed to address this type of speculation. The Court will simply note that in order for any expert witness to testify at trial, the expert must comply with Rule 26(a)(2).
As for Straughan, the Court notes that Metropolitan's expert disclosures were due November 8, 2013, with rebuttal expert disclosures due December 6, 2013. Dkts. 8 & 22. The discovery cutoff date was also November 8, 2013. Dkts. 8 & 22. Metropolitan disclosed Straughan as a rebuttal expert witness, along with a claim summary prepared by him as his expert report, on May 7, 2014.
Metropolitan suggests its disclosure was timely because it was disclosed "within 30 days of disclosure as FRCP 26 requires." Def. Br., at 2, Dkt. 111. Metropolitan cites Rule 26(a)(2)(B) for the proposition that a rebuttal expert must produce a report, "as a default, within thirty days after the witness is disclosed." Def. Br., at 2, Dkt. 111. Rule 26(a)(2)(B) says nothing about the time for disclosing expert reports or a default thirty day rule.
Rule 26(a)(2)(D) addresses the time to disclose expert testimony. It states that a party must make expert testimony disclosures "at the times and in the sequence that the court orders." Fed.R.Civ.P. 26(a)(2)(D)(i). The rule does set a default deadline for both initial expert disclosures and rebuttal expert disclosures - for rebuttal expert disclosures, that default is "within 30 days after the other party's disclosure." Fed.R.Civ.P. 26(a)(2)(D)(ii). But the default only applies "[a]bsent stipulation or a court order...." Fed.R.Civ.P. 26(a)(2)(D). Here, the court set the deadline for rebuttal expert disclosures as December 6, 2013. Dkts. 8 & 22. Thus, the May 7, 2014 disclosure was not timely.
Pursuant to Rule 37(c)(1), if a party fails to identify a witness as required by Rule 26(a), the party is not allowed to use that witness at trial unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c)(1). "Rule 37(c)(1) is a self-executing, ' automatic' sanction designed to provide a strong inducement for disclosure." Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011). The burden of preventing the sanction, and showing the failure was substantially justified or is harmless is on the party facing the sanction. Id.
Here, Metropolitan suggests it was justified in its late disclosure because it "obtained the report as quickly as it could and promptly disclosed the evidence to Plaintiff, " and that it became "necessary as rebuttal due to Plaintiff's failure to produce any evidence of replacement of items." Def. Br., at 2-3, Dkt. 111. Without more, simply stating that it retained the expert as quickly as it could is not substantial justification for disclosing the expert five months late. And the argument that it became necessary because of Plaintiffs' failure to produce evidence of replacement items has nothing to do with timeliness - it gives no explanation why the rebuttal expert was disclosed six months after the discovery cutoff and five months after the rebuttal expert disclosure deadline.
Metropolitan also argues that its late disclosure is harmless "because it provides sufficient notice so as to avoid any unfair surprise to the opposing party, " and again notes that it is limited to the value of inventory. The real problem here is that it does not appear Straughan is really a rebuttal expert under these circumstances. If Straughan intends to testify about the value of inventory, he should have been disclosed as an initial expert - not as a rebuttal expert to what may be lay testimony by the Hilborns. Disclosing him as a rebuttal expert "due to Plaintiff's failure to produce any evidence of replacement of items" is not proper rebuttal. Doing so harms Plaintiffs because they are now unable to rebut what would essentially be direct expert testimony by Straughan. Accordingly, the Court will grant the motion to exclude Straughan as an expert witness.
2. Defendant's Motion in Limine (Dkt. 101)
Metropolitan filed a motion in limine asking the Court to exclude a number of items from trial - 24 in all. Without repeating the arguments here, the Court will list its tentative rulings. As with many in limine rulings, however, some rulings will be general in nature, some issues cannot be fully resolved outside the context of trial, and some issues may be revisited depending on how the trial develops. Accordingly, the following rulings are subject to change depending upon how the trial unfolds.
1. At the informal status conference on July 22, 2014, the Court explained its process for bifurcating the punitive damages phase of the trial. The Court will follow that procedure to ...