Opinion
Case No. 02 C 50088.
September 26, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendant's August 26, 2005 Motion to Strike Plaintiff's Expert Disclosures and Bar Plaintiff's Expert Testimony and for Sanctions. For the reasons stated below, Defendant's Motion is granted in part.
I. History
On January 28, 2004, the court established a Pre-Trial Schedule and Order in this case through which Defendant was to provide opposing counsel with its Rule 26(a)(2) expert witness reports by March 29, 2004. Plaintiff was to provide opposing counsel with its Rule 26(a)(2) expert witness reports by May 13, 2004. Depositions were to be held by June 14, 2004. The expert schedule was reversed from the usual Plaintiff-Defendant order because the expert disclosures were related to Defendant's counterclaim against Plaintiff.
On March 26, 2004, the court extended the Schedule for Rule 26(a)(2) disclosures for both parties. Under the new schedule, Defendant was to provide opposing counsel with its Rule 26(a)(2) expert witness reports by May 14, 2004; Plaintiff was to provide opposing counsel with its Rule 26(a)(2) expert witness reports by June 30, 2004. On July 22, 2004, the court extended time for depositions until September 1, 2004.
Defendant did in fact disclose the identities of two expert witnesses, Cervelli and Venghaus, on May 14, 2004. Plaintiff deposed Defendant's experts on March 23, 2005 and April 27, 2005, respectively.
Plaintiff's expert disclosure date of June 30, 2004 came and went with no notice to the court or Defendant that experts would be identified, or that an extension was needed. However, on July 14, 2005, Plaintiff disclosed its intention to call Mr. Jack Hallibaugh as an expert witness in a draft Final Pretrial Order. On August 11, 2005, Plaintiff disclosed another expert, Mr. Ted Elicker.
Defendant contends that it received a Rule 26(a)(2) expert report from Elicker, but not Hallibaugh. (Def.'s Mtn., at 3). Plaintiff contends an expert report was sent for Hallibaugh. (Pl.'s Resp., at 4).
Defendant now protests Plaintiff's late disclosure of expert witnesses, asking the court to strike Plaintiff's disclosures and bar Plaintiff's experts' testimony. Defendant maintains that it is harmed by Plaintiff's late disclosure because it is prohibited from preparing a response to Plaintiff's expert testimony, from objecting to the qualifications of the experts, and from filing any other appropriate motion as part of the Final Pretrial Order, now due November 2, 2005.
II. Analysis
Under Federal Rule of Civil Procedure 26, "a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." This disclosure shall be accompanied by a written report prepared and signed by the witness containing the following:
a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Rule 26 further directs that:
disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party.
Fed.R.Civ.P. 26 (emphasis added).
The exclusion of non-disclosed evidence under Rule 26 is "automatic and mandatory" under Rule 37(c)(1) unless non-disclosure was "justified or harmless." Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (quoting Fed.R.Civ.P. 37). The purpose of the expert witness discovery rules is to allow "both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case." Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).
In this case, Plaintiff's disclosures were due June 30, 2004, but were not disclosed until July 14, 2005 and August 11, 2005, more than one year beyond the court ordered schedule. The disclosures were also several months beyond the deposition of Defendant's experts, which occurred on March 23, 2005 and April 27, 2005. As no extensions were requested, either after the passage of the June 30, 2004, deadline, or after the depositions, there is no doubt that Plaintiff has violated Rule 26. The only issue is whether non-disclosure was "justified or harmless."
Here, the court finds that Plaintiff's belated expert disclosures cannot be justified. Deadlines play a crucial role in the court's capacity to steer and control its docket, and the court has the discretion to effectuate its deadlines by imposing sanctions. See Parker v. Freightliner Corp., 940 F.2d 1019, 1024-25 (7th Cir. 1991). If a party needs more time to work with or obtain expert reports, the proper response is to file an appropriate motion with the court seeking time-line extensions, not to watch the deadlines pass and fire off expert disclosures out of the blue. See, e.g., Nutrasweet Co. v. X-L Eng'g Co., 227 F.3d 776, 786 (7th Cir. 2000); Baker v. Indian Prairie Cmty. Unit, 1999 WL 988799, at *3 (N.D. Ill 1999). If Plaintiff had timely come to the court after taking the Defendant's experts' depositions and demonstrated a need for a rebuttal expert(s), the court would have considered an extension of the June 30, 2004 cut-off. Instead, and unacceptably, Plaintiff sat by as the time for filing the Final Pretrial Order approached. Plaintiff also offered no explanation for its belated disclosure at the time of its disclosure.
Likewise, the court finds that Plaintiff's overdue expert disclosures cannot be characterized as harmless. The length of delay in this case is not a trivial amount of time. Plaintiff's disclosures are more than one year late. Allowing the experts to present testimony would prejudice the Defendant since discovery has long since closed, and the court is ready to accept the parties' Final Pre-Trial Order. See, e.g., Trustmark Ins. Co. v. Gen. Cologne Life, 2003 WL 21673939, at *1 (N.D. Ill 2003); Reeves v. Fed. Reserve Bank, 2004 WL 742248, at *3 (N.D. Ill. 2004). Plaintiff's circumvention of the court's Case Management Order as well as the time frames established in the Federal Rules for expert disclosures cannot be condoned. Plaintiff's delinquent Rule 26(a)(2) disclosures are struck.
III. Conclusion
Accordingly, Defendant's August 26, 2005 Motion to Strike Plaintiff's Expert Disclosures and Bar Plaintiff's Expert Testimony is granted. Finding no bad-faith at hand, Defendant's Motion for Costs is denied.