United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: MOTION TO STRIKE
DISCLOSURES OF EXPERT WITNESS MICHAEL LARSON AND EXCLUDE HIS
TESTIMONY AT TRIAL (DOCKET NO. 39) MOTION FOR FILINGS MADE
UNDER SEAL (DOCKET NO. 43)
HONORABLE RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE.
Now
pending before the Court are: (1)
Defendants/Counterclaimants' Motion to Strike Disclosures
of Expert Witness Michael Larson and Exclude His Testimony at
Trial (Docket No. 39); and (2)
Plaintiff/Counterdefendant's Motion for Filings Made
Under Seal (Docket No. 43). Having carefully considered the
record and otherwise being fully advised, the undersigned
enters the following Memorandum Decision and Order:
BACKGROUND
On
October 14, 2015, the parties submitted a stipulated
Litigation Plan, proposing an August 1, 2016 deadline for
Plaintiff/Counterdefendant Craig Wilcox
(“Plaintiff”) to “disclose expert
witnesses/reports.” See Lit. Plan (Docket No.
16). U.S. District Judge Edward J. Lodge ultimately
incorporated the August 1, 2016 deadline for Plaintiff's
expert disclosures into the Court's October 23, 2015
Scheduling Order. See Sched. Order (Docket No. 17)
(“Disclosure of Experts: The
Plaintiff shall disclose expert witnesses and the expected
testimony of those witnesses on or before August 1,
2016.”) (emphasis in original). Relevant here,
the Scheduling Order also provided:
Rules Governing Disclosures of Expert
Witnesses: Within the deadlines for the
disclosure of expert witnesses set out above, the parties
shall also provide, for each expert disclosed, the report
described in Fed.R.Civ.P. 26(a)(2)(B), as modified by Local
Rule 26.2(b). Supplementation to the expert witness report
shall be done in accordance with Fed.R.Civ.P. 26(e)(1).
Pursuant to Local Rule 26.2(b), expert witnesses will not be
allowed to offer any opinion not disclosed in the mandatory
Rule 26 disclosures, supplementation, or deposition. This
includes rebuttal experts. No undisclosed expert rebuttal
opinion testimony will be allowed at trial.
Id. (emphasis in original).
Other
than previously identifying Michael Larson as his expert
(“as well as his theories”), Plaintiff never
provided formal expert disclosures by the August 1, 2016
deadline. Opp. to Mot. to Strike, p. 2 (Docket No. 46). In
turn, within their September 6, 2016 Motion for Partial
Summary Judgment, Defendants/Counterclaimants Michael Bibin
and Michael J. Bibin and Associates CPA, P.A.
(“Defendants”) “mov[ed] the Court to
exclude all expert witnesses to be disclosed by
Plaintiff.” Mot. to Exclude and Mot. for Partial Summ.
J., p. 2 (Docket No. 37).
Plaintiff
then disclosed Mr. Larson as their sole expert on September
27, 2016, and included an eight-page report signed by him
with 226 pages of attachments. See Pl.'s Expert
Witness Discl. (Docket No. 44). Defendants then moved to
specifically strike “Plaintiff's disclosure of
Expert Witness Michael Larson, all attending documents
pertaining thereto, and exclude his testimony at trial”
via the at-issue Motion, arguing that “the disclosure
is untimely and Plaintiff did not seek an extension of
time.” Mot. to Strike, p. 2 (Docket No.
39).[1]
DISCUSSION
Rule
26(a)(2)(A) of the Federal Rules of Civil Procedure states in
relevant part that a party must disclose to the other parties
the identify of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702 . . . .”
Fed.R.Civ.P. 26(a)(2)(A). Parties must disclose their experts
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosure must
be accompanied by a written report; that report must contain:
“(I) a complete statement of all opinions the witness
will express and the basis and reasons for them; (ii) the
data or other information 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 10 years; (v) a list of all other cases in
which, during the previous 4 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.” Fed.R.Civ.P. 26(a)(2)(B) (I-vi).
“The
purpose of these disclosure requirements is ‘to prevent
surprise testimony by ensuring that opposing parties are
aware of the nature of the expert opinions prior to
trial.'” Hilborn v. Metro. Grp. Prop. and Cas.
Ins. Co., 2014 WL 2506303, *3 (D. Idaho 2014) (quoting
DR Sys., Inc. v. Eastman Kodak Co., 2009 WL 2982821,
*3, n.2 (S.D. Cal. 2009)). “If a party fails to provide
information nor identify a witness as required by the [R]ule,
the party is not allowed to use that information or witness
to supply evidence at trial unless the failure was
substantially justified or is harmless.”
Hilborn, 2014 WL 2506303 at *3 (citing Fed.R.Civ.P.
37(c)(1)). “Rule 37(c)(1) ‘gives teeth to [the
Rule 26(a) disclosure] requirements by forbidding the use at
trial any information not properly disclosed under Rule
26(a).” Hilborn, 2014 WL 2506303 at *3
(quoting Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9thCir. 2001)).
“Rule 37(c)(1) is recognized as a broadening of the
sanctioning power and a rule that is
‘self-executing' and ‘automatic.'”
Id. Moreover, because of the automatic nature of
this sanction, courts are not required to make a finding of
willfulness or bad faith prior to excluding expert testimony
at trial. See Hoffman v. Constr. Protective Servs.,
Inc., 541 F.3d 1175, 1180 (9th Cir. 2008).
The
trial court has wide latitude in using its discretion to
issue sanctions under Rule 37(c)(1). See Yeti by
Molly, 259 F.3d at 1106. The burden is on the disclosing
party to show that the delay was substantially justified or
harmless. See id. at 1106-07 (holding it is implicit
in Rule 37(c)(1) that burden is on party facing sanctions to
prove harmlessness). Despite the severity of this
exclusionary sanction, it may be appropriate “even when
a litigant's entire cause of action or defense has been
precluded.” Id. at 1106 (citing
Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y
Beneficiencia de Puerto Rico, 248 F.3d 29, 34
(1st Cir. 2001)).
Here,
it is undisputed that Plaintiff failed to properly disclose
his expert, Mr. Larson, by the August 1, 2016 deadline - that
is, though apparently identifying Mr. Larson as his expert
previously, Plaintiff did not submit any expert report from
Mr. Larson as of August 1, 2016. Even so, Plaintiff argues
that his neglect in this respect is both substantially
justified and harmless and, thus, Defendants' efforts to
strike Mr. Larson's disclosure/testimony should be
rejected.
First,
Plaintiff appears to claim that his untimely expert
disclosure is substantially justified, owing to “a
clerical oversight due to calendaring . . . .” Opp. to
Mot. to Strike, p. 3 (Docket No. 46); see also
Griggs Aff., ¶ 3 (Docket No. 46, Att. 1) (“Rather
than entering August 1, 2016 (the deadline for expert
disclosure in the discovery plan), my office used the
deadline for discovery, September 30, 2016, as the deadline
for disclosure of expert reports as well. I do not know the
reason for that as the person who did the calendaring at that
time has been gone for several months.”). There is no
question that, with busy and hectic litigation practices,
such things happen on occasion. However, such an omission,
without more, cannot constitute substantial justification for
violating an expert disclosure deadline. See, e.g.,
Baltodano v. Wal-Mart Stores, Inc., 2011 WL 3859724,
*2 (D. Nev. 2011) (discussing factors that “may
properly guide a district court in determining whether a
violation of a discovery deadline is justified, ”
before concluding: “Inadvertent mistakes and
unintentional oversights are not substantial justifications
for delay.”) (citing R & R Sails Inc. v.
Ins. Co. of State of Penn., 251 F.R.D. 520, 526 (S.D.
Cal. 2008)) (emphasis added); Jennings v. Bell Helicopter
Textron Inc., 2013 WL 5306638, *2 (S.D. Cal. 2013)
(“internal error ...