United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANTS' RENEWED MOTION FOR LEAVE TO
SUBMIT NEW EXPERT REPORT
Baker United States Magistrate Judge
are in a bind. Their expert witness, Dr. John Yuille, died
July 23, 2017. Defendants thereafter identified Dr. Barry
Cooper as their replacement expert witness, and on September
5, 2017, filed a motion for leave to submit this new expert
witness report. Shortly thereafter, on September 29, 2017,
the Court granted summary judgment in Defendants' favor.
As a result, the Court denied as moot Defendants' motion
to submit Dr. Cooper's new expert witness report.
Plaintiff successfully appealed the summary judgment ruling,
resulting in the Seventh Circuit Court of Appeals reversing
that ruling and remanding this case for trial. This prompted
Defendants to renew their motion to disclose their new expert
witness report. [Filing No. 335.]
objects to Defendants' renewed effort to disclose Dr.
Cooper as an expert witness. [Filing No. 338.] The Court held
a telephonic status conference on August 2, 2019, and gave
the parties an opportunity to be heard on this motion and
objection. As more fully set forth below, the Court grants
Defendants' renewed motion, but imposes strict deadlines
governing the disclosure of Dr. Cooper's report, his
deposition, and any challenge to his testimony.
Civ. Pro. 37(c)(1) provides in relevant part that a party may
supplement its witness disclosures provided that the failure
to timely do so was either justified or harmless. Finley
v. Marathon Oil, 75 F.3d 1225, 1230 (7th Cir. 1996).
Plaintiff faults Defendants for retaining Dr. Cooper in 2017
but as yet having failed to disclose his expert witness
report. Ordinarily, such a failure would be inexcusable. In
the instant case, however, the intervening summary judgment
ruling and appeal understandably contributed to
Defendants' predicament. While it may have been prudent
for Defendants to push forward with securing Dr. Cooper's
report during the pendency of the appeal, it is not
particularly surprising that they did not do so. Having
secured a ruling before this Court that may have ended this
litigation, Defendants opted not to spend the time and money
needed to secure Dr. Cooper's report during the pendency
of the appeal. When the appeal was decided against
Defendants, they then pushed forward with obtaining Dr.
Cooper's report, which included filing the renewed motion
to submit his report that now pends before this Court. Thus,
while Plaintiff fairly questions Defendants' approach in
this regard, Defendants' approach was justified.
closer question is whether Defendants' conduct is
harmless. Plaintiff makes a convincing argument that the late
disclosure of Dr. Cooper's report imposes a hardship on
Plaintiff, who will want to depose Dr. Cooper, could seek to
challenge his testimony, and will need to be prepared to
confront his testimony at trial if Dr. Cooper is not
excluded. The demands imposed on Plaintiff (and Defendants as
well) by the rapidly approaching October 15, 2019, final
pretrial conference, the November 12, 2019, trial, and
related deadlines will be significant. And as Plaintiff
persuasively points out, Defendants were aware of the need to
disclose Dr. Cooper's report when they agreed to the
November 12 trial date. As a result, the Court cannot
conclude that Defendants' conduct is harmless.
having found Defendants' conduct was justified, the fact
that this conduct harmed Plaintiff does not preclude
Defendants from submitting Dr. Cooper's report. Rule
37(c)(1) permits Dr. Cooper to testify if Defendants'
conduct was either justified or harmless. And the
harm to Plaintiff is minimized in two significant ways.
First, Plaintiff has known of Defendants' intention to
use Dr. Cooper as a witness and have had his curriculum vitae
and related materials (but not his report), since September
5, 2017. Second, Dr. Cooper's report is expected to be
substantially similar to Dr. Yuille's report. So the
Court will grant Defendants' renewed motion to submit Dr.
being said, the Court retains the discretion to impose
appropriate pretrial deadlines and may impose deadlines to
minimize the harm to Plaintiff caused by Dr. Cooper's
untimely report. Even though the harm has been minimized, it
still exists. Accordingly, Defendants shall disclose Dr.
Cooper's report no later than August 26, 2019.
Defendants' request to extend this deadline to September
9, 2019, is unworkable and is denied. Defendants have
contributed greatly to the bind they find themselves in. They
will have to coordinate with Dr. Cooper to expedite his
report. This could require, for example, Defendants to pay
Dr. Cooper a premium to expedite his report. But if Dr.
Cooper's report is not disclosed by August 26, it will
not be allowed. In addition, Dr. Cooper must make himself
available for deposition by Plaintiff no later than September
20. If Dr. Cooper cannot be available by this date, his
testimony will not be allowed. Any motion to limit or
preclude Dr. Cooper's trial testimony shall be filed by
October 1, 2019, and any response shall be filed by October
8, 2019. These deadlines will be strictly enforced in light
of the October 15 final pretrial conference.
these reasons, and with these limitations, the Court grants
Defendants' renewed motion to disclose their new ...