Opinion
CIVIL ACTION NO: 02-537, SECTION: "J" (1)
April 29, 2003
ORDER AND REASONS
Before the Court is Plaintiff Standard Services Company, Inc. d/b/a Transtar Distributors' ("Transtar") Motion to Strike Witex's Expert Designation (Rec. Doc. 39) which was set for a hearing on the briefs on April 16, 2003. Defendant Witex USA, Inc. ("Witex") has filed a memorandum in opposition. (Rec. Doc. 41). Transtar has also filed a reply memorandum (Rec. Doc. 56). Upon consideration of the memoranda submitted by counsel, the record, and the applicable law, the Court concludes that Transtar's motion should be GRANTED. Background
The above-captioned matter involves a dispute over an alleged distributorship agreement between Witex, a manufacturer of floor products, and Transtar, a distributor of various flooring products. Transtar filed suit against Witex asserting Louisiana state law causes of action arising out of an alleged breach of the distributorship agreement at issue. Witex then filed a counterclaim against Transtar also asserting a Louisiana state law claim for breach of the alleged agreement.
Currently, the final pretrial conference is scheduled for June 3, 2003 and the bench trial is scheduled to commence on June 26, 2003. The deadline for delivering to opposing counsel the written reports of experts who may be used by "plaintiff" was January 24, 2003. The deadline for delivering written reports of experts who may be used by "defendant" was March 24, 2003. The deadline for the completion of all discovery was April 25, 2003.
During the course of discovery, Transtar served Witex with a set of expert interrogatories requesting information regarding any potential experts. In October 2002, Witex responded to the interrogatories by stating that "[it] has yet to identify any expert witness whom it may or will call as a witness at any trial of this action." See Rec. Doc. 36, exhibit B, at 19. However, on February 28, 2003, Witex retained J. Mark Kuehnert ("Kuehnert") to provide expert testimony regarding Witex's damages that it hoped to recover in its counterclaim against Transtar. Witex then disclosed to Transtar the identity of this newly obtained expert on March 7, 2003. Witex then served Transtar with Kuehnert's written report through the United States mail on March 24, 2003. However, Transtar's counsel did not receive the report until March 27, 2003.
On March 25, 2003, Transtar filed the instant motion seeking to have the Court strike Witex's designation of Kuehnert as an expert for purposes of the counterclaim. Transtar contends that Witex, in its capacity as counterclaim plaintiff, should have delivered Kuehnert's report no later than January 24, 2003. Since Witex did not deliver Kuehnert's report until March 27, 2003, thus failing to comply with the scheduling order, Transtar argues that Kuehnert should not be allowed to give expert testimony in support of Witex's counterclaim.
In opposition, Witex argues that it complied with the Court's scheduling order, as well as the Local Rules and the Federal Rules of Civil Procedure. Witex contends that the scheduling order did not state that a counterclaim plaintiff had to comply with the "plaintiff's" deadline for submitting expert reports. As "defendant" to Transtar's claims, Witex contends it had until March 24, 2003 to deliver any expert report to Transtar's counsel. Witex argues that its mailing of Kuehnert's report to Transtar on March 24, 2003 satisfies the requirements of the scheduling order, the Local Rules, and the Federal Rules of Civil Procedure. Furthermore, Witex argues that the instant motion is a discovery motion and thus should automatically be denied because Transtar failed to conduct a Local Rule 37.1 conference prior to filing the motion.
Discussion
The Fifth Circuit grants district courts "broad discretion to preserve the integrity and purpose of the pretrial [scheduling] order." Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (quotingGeiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Pursuant to Federal Rules of Civil Procedure 16(f) 37(b)(2)(B), a district court has the authority to bar an expert witness from testifying where counsel has failed to comply with deadlines spelled out in the scheduling order. A district court is to weigh the following four factors in determining whether to exclude an expert's proposed testimony:
(1) the explanation, if any, for the party's failure to comply with the discovery order;
(2) the prejudice to the opposing party of allowing the witnesses to testify;
(3) the possibility of curing such prejudice by granting a continuance; and
(4) the importance of the witness's testimony.
Barrett, 95 F.3d at 380.
The scheduling order in the instant matter states that "[t]he Court will not permit any [expert] witness . . . to testify . . . unless there has been compliance with this Order as it pertains to the witness." See Rec. Doc. 18, at 3. For purposes of its counterclaim, Witex is the plaintiff and must thus comply with the scheduling order's deadlines for "plaintiff." To comply with the Court's scheduling order, Witex was required to obtain and deliver to Transtars counsel by January 24, 2003 the written report of any expert witness it planned to use as counterclaim plaintiff. Witex was required to comply with the January 24, 2003 deadline in order to give Transtar, as counterclaim defendant, sufficient time to depose Witex's expert and hire its own expert in rebuttal if they so chose. Transtar would not have a sufficient amount of time to take these steps were the March 24, 2003 deadline to apply to Witex as counterclaim plaintiff. This conclusion is consistent with the Court's general rule that a "plaintiff''s" written expert reports are due at least thirty days in advance of the "defendant's" reports. Therefore, there is no question that Witex failed to comply with the scheduling order when it mailed Kuehnert's written report to Transtar on March 24, 2003, two months after the imposed deadline.
The March 24, 2003 deadline would have applied to Kuehnert's report had he been hired to give expert testimony relating to Transtar's claims against Witex.
Witex attempts to justify its lack of compliance with the scheduling order by arguing that the March 24, 2003 deadline is applicable because it is the "defendant" to Transtar's claims. Furthermore, Witex argues, the claims asserted in the original complaint control who is "plaintiff" and "defendant" for purposes of the scheduling order. However, even under this theory, Witex failed to comply with the Court's scheduling order. The order required that the report be delivered to Transtar by March 24, 2003. Despite this express language, Witex's counsel placed the report in the mail on that date and thus Transtar did not receive the report until March 27. Witex's justification for its lack of compliance is unpersuasive given the fact that the report was delivered after both of the imposed deadlines expired.
Witex's actions have also prejudiced Transtar's ability to provide evidence rebutting Kuehnert's report. The current discovery deadline is April 25, 2003. The trial is scheduled to commence on June 26, 2003. After receiving Witex's expert report on March 27, Transtar had less than one month to depose Kuehnert, hire its own expert, and obtain a written report from him. Transtar would have had sufficient time to take these actions had Witex complied with the Court's January 24 deadline.
The instant dispute did not occur in a vacuum. These same attorneys have had other disputes regarding the production of documents and the scheduling of depositions. These largely unnecessary disputes have only increased the cost of this litigation to the parties involved.
Furthermore, the prejudice suffered by Transtar cannot be cured by a continuance of the trial date. This action was initiated on February 26, 2002. The counterclaim was filed on April 29, 2002. The Court has already granted two continuances in this matter. The parties are preparing for the June 26 trial date in this matter and another continuance would only result in additional and unnecessary delay. Additionally, a continuance would only reward Witex for its noncompliance with the scheduling order. "[A] continuance does not, in and of itself, `deter future dilatory behavior, nor serve to enforce local rules or court imposed scheduling orders.'" Barrett, 95 F.3d at 381 (quoting Geiserman, 893 F.2d at 792).
Kuehnert would testify as to Witex's monetary damages that it seeks to recover in its counterclaim. As a certified public accountant (CPA), Kuehnert's testimony is likely to be important to Witex's case. However, even though testimony might be highly significant, "`the importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.'" Barrett, 95 F.3d at 381 (quotingGeiserman, 893 F.2d at 792)). Additionally, the significance of this proposed testimony "merely underscores the need for [Witex] to have complied with the court's deadlines or at least informed the trial judge in advance if good faith compliance was not possible." Barrett, 95 F.3d at 381. Witex never informed the Court or opposing counsel of the untimely hiring and written report of Kuehnert. If counsel for Witex was uncertain about which deadline applied to the expert report related to its counterclaim, it could and should have made inquiry to the Court.
Thus, although the proposed testimony may be significant to Witex's counterclaim, this importance is outweighed by Witex's actions in delivering an expert report over two months after the expiration of the deadline to do so. Since this delay has prejudiced Transtar's ability to defend itself against the counterclaim, Kuehnert must be barred from giving expert testimony relating to Witex's counterclaim. This does not preclude Kuehnert from testifying as an expert in rebuttal to Transtar's claims against Witex, providing he has otherwise complied with the applicable deadline for expert reports.
The instant motion seeks evidentiary relief. It is not a discovery motion and thus Local Rule 37.1 is inapplicable. Counsel for Transtar was not required to convene a conference with counsel for Witex prior to filing this motion to strike.
Accordingly;
It is HEREBY ORDERED that Plaintiff's Motion to Strike Witex's Expert Designation (Rec. Doc. 39) is GRANTED.
It is FURTHER ORDERED that Witex's expert witness, J. Mark Kuehnert, is excluded from offering expert testimony in support of Witex's counterclaim against Transtar.