The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court
(1) DENYING IN PART DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' EXPERT REPORTS;
(2) ALLOWING PLAINTIFFS TO FILE A SUPPLEMENTAL OPPOSITION
Before the Court is Defendant's Motion to Exclude Plaintiffs' Expert Witnesses for Failure to Comply with Rule 26 and Case Management Order.*fn1 (Doc. No. 33.) Pursuant to Civil Local Rule 7.1(d)(1), this motion is suitable for disposition on the papers submitted.
On May 13, 2007, a vehicle crash occurred in the desert of southeast California. The subject Ford F-150 rolled at least twice and two of the vehicle's occupants suffered fatalities. Plaintiffs Mario Macias and Maria Teresa Macias, the parents of decedent Gabriela Macias, filed this lawsuit alleging products liability causes of action claiming that the roof was crushed during the accident and that negligent manufacturing and/or design defect caused the fatal injuries to Gabriela Macias.
The Court held a telephonic Case Management Conference on November 3, 2010, and issued the operative scheduling order. (Doc. No. 11.) The scheduling order set various deadlines relating to expert discovery. (Id.) Specifically, the order stated the following:
3. On or before April 15, 2011, all parties shall exchange with all other parties a list of all expert witnesses expected to be called at trial pursuant to Fed. R. Civ. P. 26(a)(2)(A). The list shall include the name, address, and phone number of the expert and a brief statement identifying the subject areas as to which the expert is expected to testify. The list shall also include the normal rates the expert charges for deposition and trial testimony. On or before April 29, 2011, any party may supplement its designation in response to any other party's designation so long as that party has not previously retained an expert to testify on that subject.
4. Each expert witness designated by a party shall prepare a written report to be provided to all other parties no later than May 16, 2011, containing the information required by Fed. R. Civ. P. 26(a)(2)(B).
Except as provided in the paragraph below, any party that fails to make these disclosures shall not, absent substantial justification, be permitted to use evidence or testimony not disclosed at any hearing or at the time of trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c).
5. Any party, through any expert designated, shall in accordance with Fed. R. Civ. P. 26(a)(2)(C) and Fed. R. Civ. P. 26(e), supplement any of its expert reports regarding evidence intended solely to contradict or rebut evidence on the same subject matter identified in an expert report submitted by another party. Any such supplemental reports are due on or before May 30, 2011.
6. All expert discovery, shall be completed on or before June 30, 2011. Counsel shall refer to paragraph 2 above for an explanation of "completed," and Chambers' Rules for handling discovery disputes. (Doc. No. 11.)
On April 15, 2011, Plaintiffs timely designated seven expert witnesses. (Doc. No. 33-1 at 5.) On May 16, 2011-the deadline for producing expert reports-Plaintiffs did not produce any expert reports. (Id.) Plaintiffs never requested that the Court or Defendant grant them an extension of the expert discovery deadlines. When Defendant did not receive any expert reports, Defendant's counsel immediately began the meet and confer process by setting up a meeting with Plaintiffs' counsel for May 23, 2011. (Id.) Plaintiffs' counsel never showed up for the meeting. (Id.) At about 6:00 p.m. that evening ,counsel for both parties spoke and rescheduled the meet and confer conference for May 26, 2011. (Id.) During the May 23 phone conversation, Plaintiffs' counsel stated that he would withdraw three of the expert designations.*fn2 (Id.) On May 26, 2011, counsel for both parties met in person to discuss Plaintiffs' failure to produce expert reports. (Id.) At the conference Plaintiffs' counsel finally "produced a three page 'preliminary report' from one expert, Seth W. Bayer." (Doc. No. 33-1 at 6.) On May 27, 2011, Plaintiffs provided Defendant with Mr. Bayer's curriculum vitae. (Id.) To date, Plaintiffs have not provided Defendant with a compensation list for Mr. Bayer. (Id.; Doc. No. 35 at 5.) Moreover, Plaintiffs have not produced expert reports for the remaining three experts, Bob Caldwell, Terence Honikman, and Marvin Pietruszka. (Id.; Doc. No. 36 at 2.
Defendant moves the Court to exclude Plaintiffs' expert witnesses because: (1) Plaintiff failed to timely provide written expert reports, and (2) the one report eventually provided fails to meet the requirements of Rule 26(a)(2). Plaintiffs do not refute that the report was untimely, but argue that the report is not deficient and that exclusion of Mr. Bayer's testimony is unwarranted because the untimeliness is both substantially justified and harmless. (Doc. No. 35.) Notably, Plaintiffs' opposition does not address their failure to produce expert reports for Bob Caldwell, Terence Honikman, or Marvin Pietruszka.
APPLICABLE LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(2) sets forth the required disclosures relating to expert testimony. Fed. R. Civ. P. 26(a)(2). Rule 26(a)(2)(B) mandates that in addition to disclosing the identity of the expert witness, the witness must produce a written report containing:
(i) a complete statement of all opinions the witness will express and the basis ...