United States District Court, N.D. Iowa, Western Division
Williams, Chief United States Magistrate Judge Northern
District of Iowa
case is before the Court on third-party defendant Hillshire
Brands Co.'s (“Hillshire”) Motion to Strike
Third-Party Plaintiff's Expert Witness (Doc. 63),
on third-party plaintiff Mark Druivenga d/b/a Contract
Welding & Mechanical's (“Druivenga”)
Motion for Extension of Deadline to Provide Expert Witness
Disclosures (Doc. 73).
filed its motion to strike on August 4, 2017, Contract
Welding timely filed a resistance on August 18, 2017, (Doc.
70), and Hillshire timely filed a reply on August 24, 2017
(Doc. 72). Contract Welding filed its motion for extension of
time on August 24, 2017, and Hillshire timely filed a reply
on August 29, 2017 (Doc. 79). This Court heard oral argument
on both motions on September 25, 2017.
following reasons, Hillshire's Motion to Strike
Third-Party Plaintiff's Expert Witness (Doc. 63) is
granted, and Contract Welding's Motion for Extension of
Deadline to Provide Expert Witness Disclosures is denied
(Doc. 73). The factual bases for the two motions at issue are
intertwined and will be treated as such.
FACTUAL AND PROCEDURAL HISTORY
March 22, 2014, a fire broke out at a Hillshire plant,
damaging the facility and shutting down operations for an
extended period of time. Druivenga had been performing
welding work at the plant on the day of the fire, though
Druivenga's role in causing the fire, if any, is
contested. The instant litigation was filed as a result of
the fire and Druivenga ultimately brought a third-party
complaint against Hillshire asserting his own damages as a
result of the fire. (Doc. 37).
filed its motion to strike Lawrence Harden, CPA as
Druivenga's expert witness on the issue of damages and,
in support, argues that Druivenga has failed to “serve[
] any report or disclosure that provides Mr. Harden's
opinions or the basis for those opinions.” (Doc. 63, at
2). Further, Hillshire argues that if Mr. Harden is permitted
to serve as an expert, Hillshire will be prejudiced, as trial
is currently scheduled for November 13, 2017, Hillshire has
not had the opportunity to depose Mr. Harden, and the report
that has been provided to Hillshire is grossly insufficient.
The Court-imposed deadline for Druivenga's expert witness
disclosures was March 31, 2017. (Doc. 15).
response to Hillshire's motion to strike, Druivenga filed
his motion for extension of time. In support thereof,
Druivenga states that on June 6, 2017, Druivenga informed
Hillshire via email that Druivenga intended to present Mr.
Harden as his expert witness on Druivenga's damages.
(Doc. 73, at 2). Druivenga did not provide Mr. Harden's
expert witness report at the time of this notice and only
provided the report days before the September 25, 2017,
hearing, citing “delays occasioned first by
Druivenga's difficulties in working with his own tax and
accounting firm, and then by a very serious health scare that
Druivenga experienced during the summer, requiring
hospitalization.” (Id.). It is apparent that
certain information pertaining to Druivenga's finances
would prove necessary in Mr. Harden's attempts to
calculate Druivenga's damages. Druivenga does not present
any other reason for the delay in disclosing the full breadth
of the required expert witness information beyond those
reasons recounted above.
Rule of Civil Procedure 16 requires the Court to issue a
scheduling order that includes certain deadlines, including
the deadlines for completing discovery. The Rule 16
scheduling order may be modified only for good cause.
Fed.R.Civ.P. 16(b)(4); Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008).
Rule of Civil Procedure 26(a)(2)(B) provides that expert
witnesses must provide a written report containing: 1)
“a complete statement of all opinions the witness will
express and the basis and reasons for them;” 2)
“the facts or data considered by the witness in forming
them;” 3) “any exhibits that will be used to
summarize or support them;” 4) “the witness's
qualifications, including a list of all publications authored
in the previous 10 years;” 5) “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 6) “a statement of the
compensation to be paid for the study and testimony in the
case.” “A party must make these disclosures at
the times and in the sequence that the court orders.”
Fed.R.Civ.P. 26(a)(2)(D). A late disclosure of an expert
opinion can be “equivalent to failure to
disclose.” Trost v. Trek Bicycle Corp., 162
F.3d 1004, 1008 (8th Cir. 1998) (“failure to disclose
in a timely manner is equivalent to failure to disclose,
” citing Sylla-Sawdon v. Uniroyal Goodrich Tire
Co., 47 F.3d 277, 284 (8th Cir. 1995) (“In prior
cases, [the Eighth Circuit Court of Appeals has] upheld
rulings by district courts precluding experts from testifying
when those experts were not timely disclosed pursuant to
pretrial orders and local rules.”)).
party fails to provide the information or the identity of an
expert witness in compliance with Rule 26(a), the Court has
wide discretion to fashion a remedy or sanction under Rule
37(c) that is appropriate under the circumstances. These
sanctions can include the exclusion of testimony on
undisclosed opinions at trial. See Fed. R. Civ. P.
37(c)(1). These sanctions do not apply, however, if
“the failure was substantially justified or is
harmless.” Id. See, e.g., Wegener v.
Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (the district
court did not abuse its discretion in excluding expert
witness testimony supplemented fewer than three weeks prior
to trial because, in relevant part, the late disclosure was
neither substantially justified nor harmless, and “a
continuance would have postponed a much-delayed
trial”); Williams v. TESCO Servs., Inc., 719
F.3d 968, 976 (8th Cir. 2013) (finding no “clear and
prejudicial abuse of discretion” in the district
court's decision to strike an expert's second report,
which was disclosed after the close of both discovery and the
summary judgment record, because that report
“materially alter[ed], [rather than] merely
clarif[ied]” the expert's original report and
deposition testimony). Importantly, “the exclusion of
evidence is a harsh penalty [for non-compliance with
discovery disclosure deadlines] and should be used
sparingly.” Wegener, 527 F.3d at 692. But
see Sylla-Sawdon, 47 F.3d at 285 (holding that a trial
court has great discretion in determining whether to exclude
expert testimony that is not disclosed in compliance with the
Court's scheduling order).