United States District Court, W.D. Kentucky, Owensboro Division
CHARLES MORRIS, et al. PLAINTIFFS
TYSON CHICKEN, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., SENIOR JUDGE
matter is before the Court on Defendants' motion for an
order striking Dr. Kyle Stiegert's second report or, in
the alternative, permitting them to take a second deposition
of Stiegert and file responsive reports from their own
experts. [DN 149]. Fully briefed, the matter is ripe for
decision. For the following reasons, Defendants' motion
is DENIED IN PART AND GRANTED IN PART.
modified scheduling order, the parties had the following the
deadlines: Plaintiffs' expert disclosures were due in
July 2019, Defendants' expert disclosures were due in
August 2019, and rebuttal expert disclosures were due in
September 2019. [DN 135]. Plaintiffs and Defendants disclosed
their expert witnesses and reports by their respective
deadlines. [DN 150 at 1]. No. rebuttal reports were provided
by the deadline. [Id.]. Plaintiffs emailed a second
report of their expert, Stiegert, to Defendants on October 9,
2019. [DN 150-1 at 3]. Defendants received the report the day
after while en route to Wisconsin to depose Stiegert, whose
deposition was scheduled for the next day. [Id. at
2]. Defendants now request that the Court strike
Stiegert's second report. [DN 149].
the Federal Rules of Civil Procedure, each party must
disclose to the other side the identity of any expert witness
that the party intends to call at trial. Fed.R.Civ.P.
26(a)(2)(A). Any expert disclosures “must be
accompanied by a written report . . . if the witness is
retained . . . to provide expert testimony in the case.
Fed.R.Civ.P. 26(a)(2)(B). A party can also provide a
supplemental or rebuttal report. Fed.R.Civ.P. 26(e);
Fed.R.Civ.P. 26(a)(2)(D)(ii). The disclosures must be made
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). If a party fails to
make a Rule 26(a) or (e) disclosure, then “the party is
not allowed to use that information or witness to supply
evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
argue that Stiegert's second report is an untimely
rebuttal report. [DN 150 at 2]. They also argue that because
the second report prejudices them it must be excluded.
[Id.]. Plaintiffs respond that the second report is
a proper supplemental report that is not prejudicial to
Defendants. [DN 154 at 5-8].
the Second Report Supplemental or Rebuttal?
first question for the Court to answer is whether the second
report is a supplemental or rebuttal report. A party who has
made an expert testimony disclosure under Rule 26(a) must
supplement its disclosure “in a timely manner if the
party learns that in some material respect the disclosure . .
. is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to
the other parties during discovery process or in
writing.” Fed.R.Civ.P. 26(e)(1)(A); see Sibley v.
Sprint Nextel Corp., No. 08-2063-KHV, 2013 WL 1819773, at *3
(D. Kan. Apr. 30, 2013) (finding that “[c]ourts have
made clear . . . that Rule 26(e)(2) does not permit a party
to use the supplementing procedure to submit an amended or
rebuttal report not based on new information”). On the
other hand, a rebuttal report is “intended solely to
contradict or rebut evidence on the same subject matter
identified by another party.” Fed.R.Civ.P.
Plaintiffs suggest that they were simply trying to inform the
Defendants as to how Stiegert would respond to the criticism
of his opinions levied by the Defendants' experts. While
that thought is commendable, the second report seems to go
beyond that. The Court does not have access to the reports of
Defendants' experts, but it seems, from reading
Stiegert's second report, that he at times seeks to rebut
the theories and opinions of the defense experts, rather than
simply responding to their criticisms of him. Thus, portions
of his report constitute rebuttal testimony but this is a
very fine line.
Should the Court exclude the report?
question then becomes whether exclusion of the report is
required. The test for exclusion under 37(c) is “very
simple: the sanction is mandatory unless there is a
reasonable explanation of why Rule 26 was not complied with
or the mistake was harmless.” Bessemer & Lake Erie
R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th
Cir. 2010) (internal quotation marks and citation omitted).
The potentially sanctioned party bears the burden of proving
that their noncompliance with the disclosure rules was
substantially justified or harmless. Roberts ex rel Johnson
v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003)
(citations omitted). The Court considers five factors to
assess whether a party's untimely disclosure is
substantially justified or harmless: “(1) the surprise
to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the
extent to which allowing the evidence would disrupt the
trial; (4) the importance of the evidence; and (5) the
nondisclosing party's explanation for its failure to
disclosure the evidence.” Howe v. City of Akron, 801
F.3d 718, 748 (6th Cir. 2015) (citation omitted).
the factors discussed above, Plaintiffs' untimely
disclosure is harmless. Since there is no trial date set, the
situation can be easily cured by modifying the scheduling
order in this case. Additional time for ...