The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING PLAINTIFFS' MOTION TO EXCLUDE DEFENDANT'S EXPERT ) WITNESS
On November 5, 2008, Plaintiffs ALEX GALINDO and IRENE GALINDO ("Plaintiffs") filed a Motion to Exclude the Expert Testimony of Peter Barroso Jr., Defendant BALTIMORE AIRCOIL COMPANY's ("Defendant") expert witness. On November 25, 2008, Defendant filed an opposition. Plaintiffs filed a reply on December 3, 2008. The Court considered all of the pleadings in this matter and determined that the matter was suitable for decision without oral argument. Local Rule 78-230(h). The hearing scheduled for December 12, 2008 was vacated. For the reasons that follow, the Court orders that Plaintiffs' Motion to Exclude Defendant's Expert Testimony is GRANTED.
This is a personal injury action arising out of a December 15, 2004 incident in which Plaintiff ALEX GALINDO allegedly suffered injuries to his left hand when operating a press brake at a facility owned and operated by Defendant BALTIMORE AIRCOIL COMPANY. Plaintiffs ALEX GALINDO and IRENE GALINDO brought this action against both Defendants to recover for ALEX GALINDO'S injuries. Defendant CINCINNATI INCORPORATED was dismissed as a party on February 28, 2008 pursuant to a settlement agreement. BALTIMORE AIRCOIL COMPANY is the only remaining Defendant.
On November 5, 2008, Plaintiffs filed the instant motion to exclude Defendant's expert witness from testifying at trial. Plaintiffs argue that a scheduling conference order was issued on November 20, 2007 which set expert disclosures for October 17, 2008, and supplemental disclosures for October 28, 2008, respectively. Pursuant to this order, all non-dispositive and dispositive motions are to be filed no later than January 16, 2009. A pretrial conference is scheduled for March 19, 2009, and the matter is set for a jury trial to begin on April 20, 2009. The scheduling order informed the parties that the disclosures should include all the information set out in Rule 26 of the Federal Rules of Civil Procedure. In relevant part, the order provided as follows
[Initial and supplement expert witness disclosures] must be made pursuant to F.R. Civ. P. 26(a)(2)(A) and (B) and shall include all information required thereunder. In addition, F.R. Civ. P. 26(b)(4) and F.R. Civ. P 26(e) shall specifically apply to all discovery related to expert witnesses and their opinions included in the designations. Each expert witness must be prepared to be fully examined on all subjects and opinions included in the designations. Failure to comply with these requirements will result in the imposition of sanctions, which may include the preclusion of testimony or other evidence offered through the expert witness... Scheduling Conference Order dated Nov. 20, 2008 at pg. 5: 11-18 (Doc. 11) .
On August 26, 2008, the parties submitted a stipulation to the Honorable Lawrence J. O'Neill requesting an amendment to the scheduling order extending the expert disclosures and supplemental expert disclosures for approximately three months. On September 12, 2008, the Court declined to amend the scheduling order. In doing so, the Court commented on the importance of the scheduling order for purposes of case management and also cautioned that scheduling conference orders should not be "disregarded without peril." (Doc. 31).
Plaintiffs timely disclosed the identity of their expert as required pursuant to the Court's scheduling order. On October 21, 2008, Defendant's counsel contacted Plaintiffs' counsel and spoke with his legal secretary, Lisa Quiroz . Counsel informed Ms. Quiroz that he had received Plaintiffs' disclosures but that Defendant's disclosures had not been sent because of a calendaring error. See, Declaration of Lisa Quiroz dated November 3, 2008.at pg. 2-3. (Doc. 40). Plaintiffs' counsel was not in the office at the time the call was received. On October 28, 2008, after Plaintiffs' counsel had returned to the office, Defendant designated Peter Barroso, Jr. as a defense expert via fax. Attached to the designation was Mr. Barroso's curriculum vitae, his fee schedule, and a list of cases in which he had previously testified. See, Declaration of Douglas Kroesch dated November 25, 2008 at pg. 2. (Doc. 37). The designation however did not contain any expert report outlining Mr. Barroso's opinions, or materials that he relied on. Id. Defendant's counsel sent Plaintiffs' counsel a copy of Mr. Barroso's expert report on November 24, 2008, as soon as it was received from Mr. Barroso. Id.
Rule 26(a)(2)(B) provides that "unless stipulated or ordered by the court [the disclosure of the identity of expert witnesses pursuant to Rule 26(a)(2)(A)] must be accompanied by a written report. Fed. R.Civ. P. 26(a)(2)(B). The report shall contain, among other things, a "complete statement of all opinions to be expressed and the basis and reasons for them" and the data or other information considered by the witness in forming the opinions. F.R. Civ. P. 26(a)(2)(B). A party who fails to properly disclose its experts and their reports may be barred from using any of the expert's direct testimony unless there was "substantial justification" for the failure to disclose or the failure was "harmless." Fed. R.Civ.Proc. 37(c)(1).
In determining whether this action should be imposed, the burden is on the party facing the sanction to prove harmlessness. Torres v. City of Los Angeles, No. 06-55817, 2008 WL 4878904 at * 12 (9th Cir. Nov. 13, 2008) (quoting, Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir 2001)). The Ninth Circuit Court of Appeals gives wide latitude to a district court's exercise of discretion to issue sanctions for failure to disclose an expert. Yeti, 259 F. 3d at 1106. Moreover, F.R. Civ. P. 16(f) and 27(b)(2)(B) "authorize district courts to prohibit the admission of evidence proffered by the disobedient party." Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995), cert. denied, 516 U.S. 822, 116 S.Ct. 84 (1995); United States v. 68.94 Acres of Land, 918 F.2d 389, 396 (3rd Cir. 1990); Smith v. Rowe, 761 F.2d 360, 366 (7th Cir. 1985). The power of the trial court to exclude exhibits and witnesses not disclosed in compliance with discovery and pretrial orders is essential to judicial management of the case. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897-898 (8th Cir. 1978); Sylla-Sawdon, 47 F.3d at 284. The Ninth Circuit has upheld a district court ruling precluding an expert from testifying when the expert was not timely and properly disclosed. Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir.), cert. denied, 479 U.S. 918, 107 S.Ct. 324 (1986).
In considering whether to exclude the expert testimony, the court should consider: (1) the explanation, if any, for the failure to disclose; (2) prejudice to the opposing party; (3) the potential for curing the breach by granting a continuance; and (4) the importance of the testimony. See Barett v. Atlantic Richfield Co. 95 F.3d 375, 380 (5th Cir. 1996); Sierra Club Lone Star Chapter v. Cedar ...