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Humphreys & Partners Architects, L.P. v. HRB Louisville LLC

United States District Court, W.D. Kentucky, Louisville

December 20, 2016

Humphreys & Partners Architects, L.P., Plaintiff,
v.
HRB Louisville, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Colin Lindsay, Magistrate Judge

         Humphreys & Partners Architects, L.P. (“Humphreys”) moved to compel the HRB Defendants'[1] 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).

         For the reasons below, the Court will grant in part and deny in part the motion to compel.

         Background

         On 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).

         That 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.

         Discussion

         Rule 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.” Fed.R.Civ.P. 26(a)(2)(C).

         Then, “[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 harmless.”).

         Analysis

         1. Sussman's expert report

         Sussman's 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).

         Humphreys 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 ...


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