United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE
PLAINTIFF'S EXPERT DISCLOSURE AND VACATING MAY 31, 2017
HEARING (ECF NO. 39-41)
Edwina Pinon, individually and on behalf of all persons
similarly situated, filed this action on March 10, 2016. (ECF
No. 1.) Currently before the Court is Defendant's motion
to strike Plaintiff's expert disclosure and preclude
Plaintiff's expert from testifying in support of class
certification with was referred to the undersigned pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF No.
39.) Plaintiff did not file a timely opposition to
Local Rule provides that a party who fails to file a timely
opposition is not entitled to be heard in opposition to the
motion at oral argument. L.R. 230(c). Therefore, the hearing
set for May 31, 2017 shall be vacated.
of the Federal Rules of Civil Procedure requires the
disclosure of expert witnesses. Fed.R.Civ.P. 26(a)(2). As
relevant here, unless stipulated by the parties or otherwise
ordered by the Court, the party's expert disclosure must
be accompanied by a written report, which has been prepared
and signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). The
witness's “report must contain: (i) a complete
statement of all opinions the witness will express and the
basis and reasons for them; (ii) the facts or data considered
by the witness in forming them; (iii) any exhibits that will
be used to summarize or support them; (iv) the witness's
qualifications, including a list of all publications authored
in the previous 10 years; (v) a list of all other cases in
which, during the previous 4 years, the witness testified as
an expert at trial or by deposition; and (vi) a statement of
the compensation to be paid for the study and testimony in
the case.” Fed.R.Civ.P. 26(B).
36(c)(1) gives teeth to the expert disclosure
“requirements by forbidding the use at trial of any
information required to be disclosed by Rule 26(a) that is
not properly disclosed.” Yeti v. Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
2001). Rule 36 provides that a party is not allowed to use
information or witnesses that are not disclosed or
supplemented as required by Rule 26(a) or (e) unless the
failure was substantially justified or harmless. Fed.R.Civ.P.
36(c)(1). “The Advisory Committee Notes describe [this]
as a ‘self-executing, ' ‘automatic'
sanction to ‘provide[ ] a strong inducement for
disclosure of material. . . .' ” Yeti by Molly,
Ltd., 259 F.3d at 1106 (quoting Fed.R.Civ.P. 37 advisory
committee's note (1994)). The burden is on the party
seeking to admit the evidence to demonstrate that the failure
to disclose was substantially justified or harmless. Yeti
by Molly, Ltd., 259 F.3d at 1107.
the factors that may properly guide a district court in
determining whether a violation of a discovery deadline is
justified or harmless are: (1) prejudice or surprise to the
party against whom the evidence is offered; (2) the ability
of that party to cure the prejudice; (3) the likelihood of
disruption of the trial; and (4) bad faith or willfulness
involved in not timely disclosing the evidence.”
Lanard Toys Ltd. v. Novelty, Inc., 375 F.App'x
705, 713 (9th Cir. 2010) (citing David v. Caterpillar,
Inc., 324 F.3d 851, 857 (7th Cir. 2003)); Monroe v.
Davis, No. 2:13-CV-00863-GMN, 2014 WL 3845121, at *2 (D.
Nev. Aug. 4, 2014).
scheduling order in this action provided that the parties
were required to disclose expert witnesses in writing on or
before April 7, 2017, and all supplemental experts were to be
disclosed by May 2, 2017. (Scheduling Order 2, ECF No. 35.)
Further, the order stated that “written designation of
retained and non-retained experts shall be made pursuant
to Fed.R.Civ.P. 26(a)(2), (A), (B) and (C) and shall include
all information required thereunder. Failure to
designate experts in compliance with this order may result in
the Court excluding the testimony or other evidence offered
through the experts that are not properly disclosed in
compliance with this order.” (Id. (emphasis in
purpose of the expert report is “the elimination of
unfair surprise to the opposing party and the conservation of
resources.” Elgas v. Colorado Belle Corp., 179
F.R.D. 296, 299 (D. Nev. 1998). “The test of a report
is whether it was sufficiently complete, detailed and in
compliance with the Rules so that surprise is eliminated,
unnecessary depositions are avoided, and costs are
reduced.” Elgas, 179 F.R.D. at 299. Rule 26
requires “exact compliance in all particulars with the
disclosures” requirement. Elgas, 179 F.R.D. at
299 (quoting Sullivan v. Glock, Inc., 175 F.R.D.
497, 503 (D. Md. 1997)). When Plaintiff provided her expert
disclosure, she provided contact information for the expert
and a curriculum vitae, but no expert report was attached.
(Decl. of Pamela M. Ferguson ¶ 6; Designation of Expert
Witness, ECF No. 41 at 9-16.) Plaintiff's expert
disclosure did not comply with Rule 26.
is required to make expert disclosures at the time and in the
sequence that the court orders. Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir.
2011). It is undisputed that Plaintiff has not complied with
Rule 26 in her expert disclosures. Therefore, the burden is
on Plaintiff to demonstrate that the failure to disclose was
substantially justified or harmless. Yeti by Molly,
Ltd., 259 F.3d at 1107.
expert disclosure was due by April 7, 2017. (ECF No. 35.)
While there appears to have been an issue with discovery,
Plaintiff has not brought a motion to compel or sought an
extension of the expert disclosure deadline or any other
deadline in the December 14, 2016 scheduling order.
Plaintiff's motion for class certification is due on June
16, 2017, and the deadline for expert discovery closes on
June 2, 2017.
argues that the failure to provide the opinion of the expert
is presumptively prejudicial because Defendant has not had an
opportunity to review the report, depose the expert, or
solicit its own expert. Given the pending dates, the Court
finds that Defendant has suffered harm by the failure to
disclose the expert report. Since Plaintiff did not provide
the opinion of the expert, Defendant has not had an
opportunity to depose the expert. The purpose of deposing the
expert witness would be to test the opinion and the bases for
the opinion. Here, Defendant is unaware of what the
expert's opinion would be or what it would be based upon.
Had Plaintiff provided the expert report on the date the
expert disclosure was made, Defendant would have had the
opportunity to conduct a deposition within the period that
discovery in this action was open. Also, Defendant was
required to disclose any rebuttal experts ...