United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on a Motion to Bar Untimely
Disclosures [DE 28], filed by Defendants on August 17, 2017.
Because the parties were pursuing settlement, the Court
extended the deadline for Plaintiff to respond to the motion
to November 2, 2017. Plaintiff has not responded, and the
time to do so has passed. The parties' November 20, 2017
joint status report recognizes that Plaintiff has not filed a
response. Thus, the motion is ripe for ruling.
lawsuit was brought by Plaintiff to recover for injuries
arising from an automobile accident that occurred on October
24, 2013. At the scheduling conference on February 2, 2017,
the Court set Plaintiff's expert disclosure deadline for
February 28, 2017, Defendants' expert witness disclosure
deadline for May 15, 2017, and the expert discovery deadline
for July 31, 2017. The fact discovery deadline was also set
for July 31, 2017.
February 28, 2017, Plaintiff disclosed four witnesses,
including a medical expert, a wage loss expert, a life care
expert, and a forensic medical expert. In light of the number
of Plaintiffs' expert disclosures, Defendants requested
and received an extension of their expert disclosure deadline
to July 28, 2017. The fact discovery deadline was not
extended. Subsequently, Defendants filed a second motion for
extension of time to serve expert witness disclosures based
on Plaintiff's non-compliance with outstanding discovery
requests. As of July 20, 2017, Defendants were still awaiting
answers from Plaintiff to their First Supplemental Set of
Interrogatories, served almost a year earlier on July 26,
2016, as well as to Defendants' requests to produce the
expert files for Plaintiff's four disclosed experts.
Defendants had also been waiting for supplemental medical
records and bills after repeatedly requesting the information
from Plaintiff's counsel. On July 21, 2017, the Court
extended Defendants' expert disclosure deadline to August
18, 2017. The July 31, 2017 fact discovery deadline was not
on June 16, 2017, Defendants requested that Plaintiff answer
the outstanding discovery, and made the same request again on
June 30, 2017. Plaintiff did not answer the discovery by that
deadline. It was not until August 3, 2017, two weeks before
Defendants' expert disclosures were due and after the
discovery deadline that Plaintiff provided answers to
Defendants' First Supplemental Interrogatories
(originally served on July 26, 2016). In addition, Plaintiff
served over 300 pages of supplemental medical records and
bills, including a cervical spine injection on April 26,
2017, and ten additional doctor's visits. The records
also included new medical records dating back to April 2014.
Finally, Plaintiff provided the name of a treater, Dr.
Brazley, who had not previously been disclosed.
for Defendants was out of the country from August 6, 2017, to
August 11, 2017, with no access to email and, thus, did not
have knowledge of the new records until she returned to the
office on August 14, 2017. Counsel for Defendants represents
that, had she had access to her email, she would reviewed the
records prior to August 14, 2017.
instant motion, Defendants ask the Court to exclude all of
the records disclosed on August 3, 2017, as well as any
testimony of Dr. Brazley. Federal Rule of Civil Procedure
37(c)(1) provides, in relevant part: “If a party fails
to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1).
Courts consider several factors when deciding whether
non-compliance with Rule 26(a) is harmless: (1) the prejudice
or surprise to the party against whom the evidence is
offered; (2) the ability of the party to cure the prejudice;
(3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the
evidence at an earlier date. Tribble v. Evangelides,
670 F.3d 753, 760 (7th Cir. 2012) (quoting David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
Federal Rule of Civil Procedure 26(e) requires that a party
supplement any disclosures or responses “in a timely
manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been
made known to the other parties during the discovery process
or in writing.” Fed.R.Civ.P. 26(e). The medical records
and bills disclosed by Plaintiff on August 3, 2017, were not
timely disclosed in light of the several requests made by
Defendants as well as Defendants' impending expert
disclosure deadline. Plaintiff has not responded to this
motion and, thus, has not offered any justification for the
delay, nor has Plaintiff argued that the late disclosure is
harmless. Defendants are prejudiced by the late disclosure
because they did not have an opportunity to conduct
additional discovery based on the disclosures, despite having
requested the discovery well before the discovery deadline.
In addition, Defendants' experts did not have an
opportunity to review these records prior to giving their
opinions. Defendants should not incur the cost of obtaining
supplemental reports from their experts because of
Plaintiff's late disclosure.
Federal Rule of Civil Procedure 26(a)(2)(C) requires that,
for experts who are not required to provide a written report,
a party must disclose the expert by stating the subject
matter on which the witness is expected to present evidence
and a summary of the facts and opinions to which the witness
is expected to testify. Fed.R.Civ.P. 26(a)(2)(C). Disclosure
must be made “at the times and in the sequence that the
Court orders.” Fed.R.Civ.P. 26(a)(2)(D). Defendants
seek the exclusion of Dr. Brazley's testimony because
Plaintiff did not timely disclose him. Plaintiff began
treating with Dr. Brazley on January 3, 2017. Thus, Plaintiff
knew of Dr. Brazley prior to her February 28, 2017 expert
witness disclosure deadline and could have disclosed him by
the deadline. Moreover, Plaintiff did not disclose Dr.
Brazley until August 3, 2017, when Plaintiff knew in February
2017 that Defendants' expert disclosure deadline was
originally May 15, 2017, and later that the deadline was
extended to August 18, 2017. Having filed no response to this
motion, Plaintiff has offered no argument as to why the late
disclosure of Dr. Brazley is either harmless or substantially
justified. Defendants were both surprised and prejudiced by
the late disclosure given that their experts had already
begun forming their opinions for disclosure by the August 18,
Court finds that Plaintiff's August 3, 2017 discovery
disclosures were untimely and that the failure to make timely
disclosures was neither substantially justified nor harmless.
Accordingly, under Rule 37(c)(1), Plaintiff is not allowed to
use the discovery disclosed on August 3, 2017, including any
testimony of Dr. Brazley.
the Court hereby GRANTS the Motion to Bar
Untimely Disclosures [DE 28]. The Court
STRIKES Plaintiff's August 3, 2017
disclosure of records and bills and of Dr. Brazley and
ORDERS that Plaintiff is barred from using
the records and ...