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Shore v. Brown

October 9, 2009

WILMA SHORE, PLAINTIFF,
v.
KEVIN M. BROWN, ACTING COMMISSIONER OF INTERNAL REVENUE SERVICE OF UNITED STATES OF AMERICA, AND DOES 1 THROUGH 10 INCLUSIVE DEFENDANT.
UNITED STATES OF AMERICA, COUNTERCLAIMANT,
v.
WILMA SHORE, COUNTERCLAIM DEFENDANT.
AND GREGORY SHORE AND BRENDA O. REYNOLDS ADDITIONAL COUNTERCLAIM DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE DEFENDANT UNITED STATES OF AMERICA'S MOTION TO STRIKE EXPERT DISCLOSURE OF DENNIS BEAN

(Doc. 48.)

I. INTRODUCTION

Before the court for decision is the United States' "Motion to Strike the Expert Disclosure of Mr. Dennis Bean," filed on June 5, 2009. (Doc. 48.) Plaintiff Wilma Shore has filed opposition, to which the United States has replied. (Docs. 68, 71.)

II. BACKGROUND

Dennis Bean is an expert witness for Plaintiff. Mr. Bean is a Certified Public Accountant hired by Mrs. Shore to opine on her culpability under 26 U.S.C. 6672. Mr. Bean also intends to offer opinions concerning internal policies and procedures at the IRS.

On April 16, 2009, pursuant to a modified scheduling order, the deadline for all expert disclosures was extended to May 6, 2009. (Doc. 47.) The order also extended the deadline for expert rebuttal witnesses to June 8, 2009 and the expert discovery deadline to June 29, 2009. The trial date is November 3, 2009.

On May 15, 2009, Plaintiff identified Dennis Bean as her expert. However, Plaintiff's disclosure did not, as required by Rule 26 of the Federal Rules of Civil Procedure, include Mr. Bean's report nor did it include his proposed opinions.

On June 5, 2009, the United States moved to strike Plaintiff's expert disclosure of Mr. Bean and to preclude Mr. Bean from presenting trial testimony. The United States provides two grounds to support its motion. First, the government argues that Plaintiff's disclosure was untimely. Second, the untimely disclosure did not include Mr. Bean's report or his opinions, i.e., the necessary information under Rule 26(a)(2) of Federal Rules of Civil Procedure. According to the government, because Mr. Bean's designation was incomplete and untimely, it was not able to obtain a rebuttal expert by the expert deadlines. The government asserts that Mr. Bean's designation was prejudicial.

On August 10, 2009, counsel for Plaintiff served on the United States an unsigned report of Dennis Bean. The report was sent by email and labeled "Draft."

On August 10, 2009, Plaintiff opposed the government's motion to strike. (Doc. 68.) Plaintiff claims that the Mr. Bean's designation was a mere nine days late and, in any event, Mrs. Shore stipulates to allowing the government to disclose an expert any time up to trial and will make Mr. Bean available to the government for deposition by phone, internet, or in person. (Id.)

The United States filed its reply on August 13, 2009. (Doc. 71.) In its reply, the government elaborated on its frustration concerning Plaintiff's incomplete and untimely expert designation:

[t]he report did not follow within days or even weeks after the Plaintiff identified the expert. The United States would not quibble over small or inconsequential variations from the scheduling order in this case. But Plaintiff has unfairly shortened the United States' time to prepare for trial by a large margin. The Court's deadlines afforded the parties six months to prepare for expert testimony at trial. By first providing an unsigned draft report less than three months prior to trial, long after the close of expert discovery, after the filing of a motion for summary judgment by the United States that addressed the known issues in the case, and a mere week prior to the hearing on the motion to strike Mr. Bean, the Plaintiff has crossed the line from mere untimeliness into inexcusable neglect that prejudices the United States. The Plaintiff has not provided any compelling reason for this extreme untimeliness. Indeed, this case was filed in August 2007, and the Plaintiff has had more than ample time to procure an expert and have a report prepared. (Doc. 71, 5:10-5:19.)

At oral argument, Plaintiff's counsel candidly admitted he had no cause for the late report except that the date it was submitted was ...


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