United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief Judge
Patricia Jones filed a motion for an extension of discovery
deadlines and leave to disclose experts on September 27,
2019. [Record No. 24] Based on a review of the file of this
action, the Court determined that a response is not needed to
resolve the issues presented by the relief requested by
plaintiff's motion relates, and indirectly responds, to
Defendants Jon Lowery and the American National Red
Cross' (“the defendants”) pending motion for
summary judgment. [Record No. 21] The defendants note in
their summary judgment motion that Jones failed to provide
expert witness disclosures by the Scheduling Order's
[Record No. 12] September 3, 2019, deadline. [Record No. 21,
pp. 2-5] They contend that they are entitled to judgment as a
matter of law because Jones has missed the deadline and her
claim requires expert witness testimony to proceed to trial.
acknowledges that she missed the September 3, 2019,
disclosure deadline. [Record No. 24] She asserts, however,
that the Court should grant leave for her to make tardy
disclosures because she only intends to call past
treatment providers as expert witnesses. Id. at p.
1. Jones states that the identities of these treatment
providers have already been disclosed, and the content of
their opinions is borne out in past medical reports that she
has provided to the defendants. Id. She further
claims that the failure to disclose was excusable neglect
because her counsel mistakenly transcribed the relevant
deadline as “October 3, 2019.” Id. at p.
2. She cites Sommer v. Davis, 317 F.3d 686 (6th Cir.
2003), for the proposition that tardy disclosure would be
harmless and accordingly requests leave of court to excuse
counsel's mistake. Id. at p. 1.
of the Federal Rules of Civil Procedure governs sanctions for
failures to make discovery disclosures. It states, in
relevant part, that: “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) .
. . 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). In Sommer,
the Sixth Circuit found that a circumstance satisfying this
“harmlessness” standard has two components: (1)
the failure to disclose a witness must be the result of an
honest mistake; and (2) the adverse litigant must already
have sufficient knowledge of the identity of the witness and
the witness' opinions. Sommer, 317 F.3d at 692.
It concluded that the district court did not abuse its
discretion in denying a supplemental Rule 26(a) disclosure
because there was neither evidence that the failure to
disclose the expert was the result of an honest mistake,
“nor [evidence that] the defendants ha[d] sufficient
knowledge of him or his opinions, since the first hint that
he might have some involvement in the case came . . . months
after the expert-disclosure deadline.” Id.
appears to allege in good faith that counsel made an honest
mistake. [Record No. 24, p. 2] And although her motion does
not cite to specific instances of the alleged earlier
disclosures, the record suggests that some occurred prior to
the September 3, 2019, deadline. The parties' September 3
Joint Status Report indicates that the plaintiff served
responses to the defendants' first set of interrogatories
and requests for production on August 23, 2019. [Record No.
20] The defendants attached these responses to their pending
motion for summary judgment. [Record No. 21-1] Jones'
answers to interrogatories and requests for production
reference “attached medical records and bills” to
identify physicians who have treated her and similarly cite
these care providers' treatment reports. Id. The
defendants did not attach the actual medical records to their
motion for summary judgment, but based on the record, they
apparently had some knowledge of the identity of treatment
providers and their respective opinions prior to the
September 3, 2019 deadline.
Court will grant, in a very limited sense, Jones' motion
for leave to disclose expert witnesses. Jones may disclose,
and subsequently call at trial, expert witnesses who are
identified in, and whose opinions relevant to trial testimony
are documented in, the responses to the interrogatories and
requests for production, the accompanying medical records,
and any other documents she submitted to the defendants prior
to the September 3, 2019, deadline.
Court does not, however, grant leave to disclose:
(1) potential expert witnesses who are not identified in
documents that the plaintiff submitted to the defendants
prior to September 3, 2019; or (2) potential expert witnesses
who were identified in documents that the plaintiff submitted
to the defendants prior to September 3, 2019, but whose
opinions relevant to trial testimony are not evidenced in
documents that were in the defendants' possession prior
to September 3, 2019. Jones should note that, under these
limitations, she is not permitted to disclose, and
subsequently cannot call at trial, expert witnesses whose
identities and opinions have been disclosed between September
3, 2019, and the entry of this Order. These classes of
potential witnesses would not meet Sommer's
“harmlessness” standard, and Jones cannot use
such testimony to support her claim. See Rule
on the foregoing, the Court will deny the defendants'
motion for summary judgment without prejudice. If the
defendants believe summary judgment is appropriate after the
plaintiff makes Rule 26(a) expert disclosures, they may renew
sufficiently advised, it is hereby ORDERED
Defendants' motion for summary judgment [Record No. 21]
is DENIED without prejudice.
Plaintiff Patricia Jones' motion for leave to disclose
experts and an extension [Record No. 24] is
GRANTED. Jones may make Rule 26(a)(2) expert
witness and corresponding report disclosures for experts who
have been identified in, and whose opinions relevant to
expert witness trial testimony are evidenced in, documents
she has submitted to the defendants prior to September 3,
2019. She may make no expert disclosures that do not comport
with the restrictions outlined in this Order.
Scheduling Order [Record No. 12] is amended as follows:
a. Subject to the limitations outlined above, Jones shall
make any Rule 26(a)(2) disclosures on or before
Friday, October 18, 2019. The defendants may
identify expert witnesses and provide expert witness