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William A. Smith v. Nat'l City Mortgage

July 17, 2012



On July 12, 2012, the court held a hearing on defendant's motion to preclude expert testimony. Michael Maloney appeared for plaintiff. Kimberly Paese appeared for defendant. On review of the motion, following discussion of counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


On June 30, 2011, the Honorable John A. Mendez issued a scheduling order setting April 13, 2012 as the deadline by which to make initial expert disclosures, and April 27, 2012 for supplemental expert disclosures. Doc. No. 49. On April 16, 2012, Judge Mendez signed the parties' stipulation extending the initial expert deadline to May 14, 2012 and the supplemental disclosures deadline to May 28, 2012. Doc. No. 59. Discovery concluded on June 8, 2012, and trial is scheduled to commence on November 5, 2012.

On May 10, 2012, and in compliance with the stipulated expert discovery deadlines, plaintiff served on defendant a document entitled "Plaintiff's Disclosure of Expert Witnesses" ("Plaintiff's Disclosure Document"). This document listed three individuals as experts -- Doug Minor, David Pereira and Jessica Dutra -- and provided only their names and addresses.

Plaintiff also served a declaration of counsel entitled "Declaration of Michael D. Maloney in support of Plaintiff's Disclosure of Expert Witnesses" ("the Supporting Declaration"). The Supporting Declaration also set forth three intended expert witnesses: Doug Minor, David Pereira and Barry Cleverdon. Cleverdon, however, was not listed in Plaintiff's Disclosure Document. Jessica Dutra, who was listed in Plaintiff's Disclosure Document, was not listed in the Supporting Declaration. Also, the Supporting Declaration included the CV for Pereira and Cleverdon as exhibits, but no documents for Doug Minor. Finally, plaintiff failed to submit expert reports for any of the intended expert witnesses.

On May 24, 2012, defense counsel contacted plaintiff's counsel to discuss plaintiff's failure to provide expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). Counsel for plaintiff acknowledged his error and said the expert reports would be forthcoming. Plaintiff submitted an expert report on June 21, 2012. Doc. No. 75.


A. The Parties' Positions

1. Defendant

Defendant brings this motion on two grounds: plaintiff created confusion as to which individuals he intends to call as experts and plaintiff failed to submit expert reports in violation of Federal Rule of Civil Procedure 26(a)(2)(b). Defendant asserts it has been prejudiced because it has been unable to (a) determine the identity of the proffered experts with any certainty; (b) ascertain the opinions the proffered will offer at trial or what they base the same upon; (c) evaluate the need for rebuttal experts and/or seek and retain them (let alone do so by the supplemental deadline); (d) depose the proffered experts (and/or do so before the close of discovery); (e) prepare any dispositive motion by the deadline*fn1 ; (f) prepare for trial; and/or (g) evaluate early settlement potential. Defendant also cites to Judge Mendez's scheduling order, which provides that the "[f]ailure of a party to comply with the disclosure schedule as set forth above in all likelihood will preclude that party from calling the expert witness at the time of trial absent a showing that the necessity for the witness could nto have been reasonably anticipated at the time the disclosures were ordered and that the failure to make timely disclosure did not prejudice any other party." Doc. No. 46.

2. Plaintiff

In the Joint Discovery Statement, plaintiff admits his error. He also withdraws Barry Cleverdon and Jessica Dutra as experts, leaving David Pereira and Doug Minor. In an Opposition filed after the Joint Discovery Statement was filed*fn2 , plaintiff's counsel claims any error regarding expert discovery is his and requests that his client not be punished for his error. Counsel asserts that he is primarily a state court attorney, and his initial expert filings complied with state rules of civil procedure, not the federal rules of civil procedure. Plaintiff also withdraws Doug Minor as an expert, leaving only David Pereira as an expert. Finally, plaintiff submits Pereira's expert report with his Opposition.

Plaintiff argues against granting defendant's motion on the grounds that: (a) defendant will not be prejudiced because trial is four months from the date of the hearing on this motion; (b) Pereira's testimony is critical to plaintiff's ...

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