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Geneva Lema v. Comfort Inn

January 18, 2012


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Geneva Lema, by her attorney Timothy S. Thimesch, moves this Court for an order striking Defendants' expert designation and declaring the measurements of Plaintiff's expert Danz to be established and accurate. Defendants did not respond to this motion.

I. Procedural and Factual Background

The due date for expert disclosure set forth in the July 14, 2010 scheduling order was March 1, 2011. On July 29 and 30, 2010, Plaintiff's access and general contractor consultant Karl Danz conducted a joint inspection of both properties with former defense attorney Chris Vaughn, who is also a licensed VASp consultant. The parties cooperated fully in the inspection. Vaughn observed all measurements taken on behalf of Plaintiff. The parties shared all data, photos, and findings.

On April 1, 2011, a document entitled Consolidated Action for Case Management Purposes (Doc. 24, 1:10-cv-0362; Doc. 25, 1:10-cv-01131), duly executed by both parties and the District Judge, provided that the time for discovery in the consolidate cases would be enlarged by approximately 120 days. Accordingly, expert disclosure was to be completed on or before July 1, 2011. Plaintiff provided her experts' reports to Defendants on May 10, 2011. On July 1, 2011, Plaintiff served disclosure for both experts, attaching a signed report to each. Defendants did not provide expert disclosure.

At a consolidated scheduling conference on July 27, 2011, Defendants requested additional time to complete expert disclosure. Plaintiff did not object. Accordingly the Court ordered Defendants to provide expert disclosure no later than September 2, 2011, warning Defendants that the deadline was firm and that the Court would grant no further extensions. Defendants did not provide expert disclosure on or before September 2, 2011.

On September 9, 2011, Defendants served expert disclosure which did no more than name Donald R. Bremseth as Defendants' disabled access expert and architect. The disclosure did not include a report, a curriculum vita, a list of prior testimony, or any other relevant materials. It disclosed that the inspection had not yet begun and that the retainer agreement had not yet been negotiated. The disclosure document described itself as "provisional disclosure" and stated that Bremseth "had conditionally agreed to testify at trial." Doc. 44-1 at 12-13, 15-16.

Plaintiff deposed Defendants Edwin Anthony and Katuri Lal on September 22, 2011. Both Defendants were unfamiliar with the Danz report and opinion and the measurement and configuration of the barriers alleged by Plaintiff's lawsuit. Both Defendants testified that they had not secured their own measurements and that, although Bremseth had briefly toured the properties, he had taken only a few measurements.

The parties' attorneys met and conferred following the depositions. Although Defendants declined Plaintiff's suggestion that they withdraw their expert designation to avoid a motion for sanctions, they admitted that they had not yet retained Bremseth and might retain a different expert.

By October 2, 2010, when Plaintiff was to have served her rebuttal expert disclosure, Defendants had still failed to provide full disclosure of their expert(s). Finally, on November 29, 2011, Plaintiff moved to exclude Defendants' expert and for a declaration that Ganz's measurements are uncontroverted and accurate. As of the date of this order, Defendants have still not provided full expert disclosure in the consolidated cases.

II. Exclusion of Expert Witness Testimony

Federal Rule of Civil Procedure 26(a)(2)(B) requires each party to identify any expert witness that it may use at trial to present evidence under Fed.R.Evid. 702, 703, or 705. Disclosure must be accompanied by the expert witness's signed written report. F.R.Civ.P. 26(a)(2)(B). The report must also contain:

1. a complete statement of all opinions the witness will express and the basis ...

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