United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Strike Defendants'
Expert Witnesses [Doc. No. 130]. It is at issue. See
Resp., Doc. No. 136.
Court's Scheduling Order required Defendants to file a
list of expert witnesses by March 15, 2019 and to submit the
expert witnesses' Federal Rule of Civil Procedure
26(a)(2) reports to Plaintiff by the same date. See
Scheduling Order ¶ 3(b), Doc. No. 46. On that deadline,
Defendants filed an Expert Witness List [Doc. No. 57]
disclosing Mr. Michael Ridgeway and Dr. Michael Strober as
their expert witnesses. But Defendants did not transmit their
Rule 26(a)(2) reports to Plaintiff until more than two weeks
later (Mr. Ridgeway's report on April 5th) and more than
four weeks later (Dr. Strober's report on April 16th).
Defendants transmitted their expert witnesses' reports to
Plaintiff after the deadline for Plaintiff to file any
Daubert motions. See Scheduling Order
¶ 7, Doc. No. 46. Prior to the mid-March deadline, the
parties' counsel exchanged correspondence regarding a
mutually-agreed-to extension of time for Defendants to
transmit their expert witnesses' reports to Plaintiff,
but it appears no definitive agreement was
reached. Defendants never sought-from the Court-an
extension of the Scheduling Order deadline for transmittal of
their expert witnesses' Rule 26(a)(2) reports (except as
part of their omnibus scheduling order extension request
which was denied).
first argue that the disclosure of their expert
witnesses' reports was timely because an agreement with
Plaintiff was reached under Rule 29(b). But that rule
requires that the “parties . . . stipulate . . . [to]
extending the time for [a particular] form of
discovery.” Fed.R.Civ.P. 29. Here, the parties'
counsels do not appear to have reached a definitive agreement
regarding an extension of time, so no stipulation existed.
See Garza v. Webb Cty., 296 F.R.D. 511,
511-12 (S.D. Tex. 2014) (“[A] court must approve of any
party agreement to modify a court-ordered deadline.”).
See supra note 1.
Court must therefore determine whether Defendants'
delinquent disclosure of its expert witness reports should
result in the exclusion of Defendants' expert witnesses
from testifying at trial. Rule 37(c)(1) indicates that when
“a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
. . . at a trial, unless the failure was substantially
justified or is harmless.”
In determining whether the failure to comply with Rule 26(a)
is justified or harmless, courts weigh four factors: (1) the
prejudice or surprise to the party against whom the testimony
is offered; (2) the ability of the party to cure the
prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party's bad
faith or willfulness.
ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d
1163, 1176 (10th Cir. 2011) (citing Jacobsen v. Deseret
Book Co., 287 F.3d 936, 953 (10th Cir.
Plaintiff suffered no prejudice. Plaintiff's argument
that she did not receive the reports of Mr. Ridgeway and Dr.
Strober in time to file Daubert motions (and thus
was prejudiced) would be compelling but for (i)
Plaintiff's failure to seek an extension of time from the
Court to file Daubert motions after she received the
expert witness reports and (ii) Plaintiff's decision to
wait until more than a month after receiving the later report
to seek to strike the witnesses. And, importantly, Plaintiff
deposed both of Defendants' expert witnesses-even doing
so before the Court's discovery deadline. These
circumstances differentiate the instant case from
Fairchild v. Park Medical Corp. (relied on by
Plaintiff), in which the defendants “promptly moved to
exclude [the opposing party's expert] as a witness”
because they did not have the opposing party's expert
witness's report before the discovery deadline and could
not depose the expert witness during the discovery period.
No. 09-CV-296-TCK-FHM, 2010 WL 845974, at *3 (N.D. Okla. Mar.
Plaintiff claim surprise. As indicated, Plaintiff has been
aware of the likely delinquent status of Defendants'
expert witness reports since at least January 30th
(see Doc. No. 136-2), but she did not ask the Court
to exclude the testimony of Defendants' expert witnesses
until May 20th.
already covered, any prejudice to Plaintiff has been cured by
her receipt of Defendants' expert witnesses' Rule
26(a)(2) reports and her deposing of them. There are no
indications that trial will be disrupted by the testimony of
Defendants' witnesses, and Plaintiff has not shown (or
even alleged) any willfulness or bad faith on the part of
Defendants. Also factoring into the Court's decision is
that the Court just finished an analysis of the
Woodworker's Supply factors as to
Plaintiff's failure to abide by all requirements of Rule
26 and the Court's Scheduling Order. It would be unfair
for the Court in this case to hold one party to strict
adherence to Rule 26 when no harm resulted but to allow the
other party more liberty in complying with Rule 26's
requirements, again despite no harm resulting.
told, the Court finds that the Woodworker's
Supply factors indicate Defendants' late disclosures
of their expert witnesses' reports in the specific
circumstances of this case were harmless. In addition,
although Defendants' assumption that an agreement was
reached between the parties' counsels for the delayed
transmittal by Defendants of their expert witnesses' Rule
26(a)(2) reports to Plaintiff was incorrect, the Court cannot
say that Defendants were not substantially justified in
relying on their erroneous understanding of the agreement (or
lack thereof) reached by the lawyers involved in this case.
THEREFORE ORDERD that Plaintiffs Motion to Strike
Defendants' Expert Witnesses [Doc. No. 130] is DENIED as