United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
Lindsay, Magistrate Judge
& Partners Architects, L.P. (“Humphreys”)
moved to compel the HRB Defendants' compliance with
the expert report requirements of Rule 26. (DN 121). The HRB
Defendants responded in opposition to the motion. (DN 124).
Humphreys filed a reply. (DN 125). The HRB Defendants filed a
notice of supplemental case information. (DN 126).
reasons below, the Court will grant in part and deny in part
the motion to compel.
April 19, 2016, the HRB Defendants filed their expert witness
disclosure. (DN 116). The disclosure lists Eric H. Sussman,
CPA; David E. Shipley; Robert C. Greenstreet, Ph.D; and Amy
S. Diestelkamp. Id. at 2 - 6. The disclosure
included reports by Sussman, Shipley, and Greenstreet. (DNs
116-1; 116-2; & 116-3).
same day, Humphreys filed this motion. In its reply,
Humphreys says that the HRB Defendants provided the
additional information sought with regard to Shipley.
Pl.'s Reply 2. Now, Humphreys argues that Sussman's
report is incomplete and that the HRB Defendants should have
disclosed an expert report for Diestelkamp.
26(a)(2) governs the disclosure of expert testimony. In
general, a party must disclose the identity of any expert
witness it may use at trial. Fed.R.Civ.P. 26(a)(2)(A).
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared
and signed by the witness-if the witness is one
retained or specially employed to provide expert testimony in
the case or one whose duties as the party's
employee regularly involve giving expert testimony.
Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). For a witness
who must provide a written report, the report must contain
“a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at trial
or by deposition.” Fed.R.Civ.P. 26(a)(2)(B)(v). For a
witness who is not required to provide a written report, the
disclosure must “state the subject matter on which the
witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and a summary of the facts and
opinions to which the witness is expected to testify.”
“[i]f a party fails to make a disclosure required by
Rule 26(a), any other party may move to compel disclosure and
for appropriate sanctions.” Fed.R.Civ.P. 37(a)(3)(A).
In addition, under Rule 37(c)(1), a party who fails to
provide information as required by Rule 26 “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); see also, Dickenson v.
Cardiac & Thoracic Surgergy of E. Tenn., 388 F.3d
976, 983 (6th Cir. 2004) (“The exclusion of
non-disclosed evidence is automatic and mandatory under Rule
37(c)(1) unless non-disclosure was justified or
Sussman's expert report
expert report lists fifty-three cases in which he has
participated. Pl.'s Mem. 9 (DN 121-1); Defs.' Resp. 4
n.2. Sussman's first supplement lists twenty-one cases.
(DN 120-1). Sussman's second supplement lists nineteen
cases. (DN 124-2).
argues that the Sussman's first supplement is deficient
because it does not list case numbers for all fifty-three
cases listed in Sussman's original report. Pl.'s Mem.
9. For example, Humphreys takes issue with the lack of
specificity for the cases in California courts. Id.
at 10 (“Physically searching for case files would be ...