Anderson v. Hunte Delivery System, Inc. et al (CONSENT)
MEMORANDUM OPINION AND ORDER denying 47 MOTION to Exclude Defendants' Expert Testimony, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 4/23/12. (djy, )
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
DAVID DARIEL ANDERSON,
HUNTE DELIVERY SYSTEM, INC., et al.,
CASE NO. 2:11-cv-355-TFM
MEMORANDUM OPINION AND ORDER
Now pending before this Court is Plaintiff’s motion to exclude the testimony of
Defendant’s expert witness, John Lechty, P.E., on the grounds that the expert was not
disclosed prior to the deadline set in the scheduling order.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiff David Anderson (“Plaintiff” or “Anderson”), as Administrator and
Personal Representative of the Decedent, initiated this action after a traffic accident
between Sarah Anderson (“Decedent”), and Defendants Aaron Lewis (“Lewis”), Hunt
Delivery System, Inc., Hunte Kennel Systems and Animal Care, Inc., (“Hunte”)
(collectively “Defendants”). See Doc. 27 at 4. Decedent was initially involved in a onevehicle accident that occurred at night while under heavy rain. See Doc. 30 at 6.
Decedent, the driver, lost control of the vehicle after it began to hydroplane and the
vehicle rolled at least once, but perhaps multiple times before coming to a stop upside
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down with the rear of the vehicle protruding into the left lane of traffic. Id. The vehicle
was immobile and unlit. Id. at 6-7. Later, a second accident occurred when Lewis, the
driver of a commercial vehicle owned and operated by Hunte, struck Decedent’s vehicle.
See Doc. 27 at 4. The cause and time of Decedent’s death is currently the primary dispute
in the present action. See Doc. 27 & 30. Plaintiff brings multiple claims based on
negligence and wantonness, resulting from the second collision involving the Decedents’
immobile vehicle and the Defendants’ commercial vehicle. See Doc. 27 at 3, 6, 8-10, 12.
On June 16, 2011, this Court entered a Uniform Scheduling Order pursuant to Rule
16 of the Federal Rules of Civil Procedure. (Doc. 11, filed on July 16, 2011). According to
the Uniform Scheduling Order, Defendants were to make the following disclosure by January
disclose [. . .] the identity of ANY person who may be used at trial to present
evidence under Rules 701, 702, 703, or 705, and provide the reports of
retained experts or witnesses whose duties as an employee of the party
regularly involve giving expert testimony, required by Rule 26(a)(2) of the
Federal Rules of Civil Procedure.
Id. at 3. The Defendants were also required to “comply fully with all requirements of
Rule 26(a)(2) in regard to disclosure of expert testimony.” Id. Section 12 of the Uniform
Scheduling Order adopted the discovery plan that was set forth in the Report of Parties’
Planning Meeting, filed on May 19, 2011, “[e]xcept to the extent of any conflict with
deadlines” set out in the Uniform Scheduling Order. Id. at 4.
On January 2, 2012, the date of the deadline for expert witness disclosure under
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the Uniform Scheduling Order, Defendants still had not designated or named any experts,
nor had Defendants requested an extension of the deadline. On January 5, 2012, three
days after the deadline, Defendants named John Liechty, P.E. (“Liechty”) as an expert
witness for trial. See Doc. 47-3 at 3-4. On January 6, 2012, Plaintiff filed a Motion to
Exclude Defendants’ Expert Testimony due to untimeliness. See Doc. 47.
STANDARD OF REVIEW
“When an act may or must be done within a specified time, the court may, for good
cause, extend time [. . .] on motion made afer the time has expired if the party failed to act
because of excusable neglect.” FED. R. CIV. P. 6(b). Excusable neglect is “generally an
‘equitable inquiry’ based upon the particular circumstances of the case.” E.C. ex rel.
Crocker v. Child Dev. Schs., Inc., 2011 WL 4501560, *1 (M.D. Ala. 2011) (quoting
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389, 113 S.Ct.
1489, 1495 (1993)). There are four factors that are used in making the determination
regarding whether the late filing can be considered excusable neglect: “the danger of
prejudice to the [opposing party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.” Pioneer,
507 U.S. at 395, 113 S.Ct. at 1498.
The Eleventh Circuit has found that “[b]ecause the expert discovery rules are
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designed to allow both sides to prepare their case adequately and to prevent surprise,
compliance with the requirements of Rule 26 is not merely aspirational.” Reese v.
Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008). Here, it is undisputed that Liechty was
not disclosed as an expert witness who may offer testimony at trial by the January 2, 2012
deadline set by the Uniform Scheduling Order. The deadline for expert disclosure was set
based upon the date requested by the counsel for both parties, and neither side asked the
Court to extend the deadline.
This Court consistently looks to four factors pertinent to determining the
admissibility of expert witnesses filed past the deadlines to disclose. The factors are: “the
danger of prejudice to the [opposing party], the length of delay and its potential impact on
the judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith. Pioneer
Inv. Servs. Co. V. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489,
1498, 123 L.Ed.2d 74 (1993). While no single factor is dispositive, after viewing all the
evidence presented and listening to counsel for the parties, the Court is persuaded that the
motion to exclude is due to be DENIED.
“To establish prejudice, the delay from the pleadings must ‘result in the loss of
evidence, create increased difficulties of discovery, or provide greater opportunity for
fraud or collusion.’” Crocker, 2011 WL 4501560 at *5 (citing 10 C. Wright, A. Miller
and M. Kane, Federal Practice and Procedure, § 2699 at 536-37 (2d ed. 1983)).
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Defendants have not proffered any other expert witnesses to be able to present evidence at
trial. The Court recognizes that this case will necessitate expert analysis as there is a
genuine issue of material facts surrounding the accidents. To grant the underlying motion
would leave the Defense bereft of any expert in a matter where expert testimony will
likely assist the fact finder. To Allow the Defense case to proceed without expert
testimony would create undue and unnecessary prejudice to the Defense.
The length of delay was only three days and the Court recognizes the delay was
brief. The lack of prejudice due to a brief delay, however, is not sufficient to excuse the
Defendant’s failure to comply with the deadlines in this case. The Court has consulted
other rulings by this Court and notes that there are wide variations in the periods of delay
in those cases and notes that the length of delay is not a dispositive factor. See Glenn
Construction Co. v. Bell Aerospace Services, 2011 WL 2118750 (M.D. Ala.) (involving
an eight month delay); Ballard v. Krystal Restaurant, 2005 WL 2653972 (M.D. Ala.)
(Involving a two and a half month delay); White v. Volvo Trucks of North America, 211
F.R.D. 668 (M.D. Ala. 2002) (involving a seven week delay). The Court follows a “longstanding and consistent practice of this court to enter deadlines for disclosure of witnesses
after obtaining proposals from counsel for the parties, and to then enforce those
deadlines.” White, 211 F.R.D. at 669; see also Reese, 527 F.3d at 1266.
Counsel for the Defendant stated that the filings were in fact late, that he had
looked to see if the filing dates were affected by the recent holidays, that he had been out
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of the office due to the holidays, that the delay was harmless, that the Defense would
concede to any extension requested by the Plaintiff in the future and, most notably to the
Court, that Defendants’ counsel was “not a deadlines kind of guy.” “The importance of
observing deadlines contained in scheduling orders is recognized in Rule 16(b), where it
is provided that ‘[a] schedule shall not be modified except upon a showing of good cause
and by leave of the  judge....’” White, 211 F.R.D. at 669 (quoting FED. R. CIV. P. 6(b)).
The Eleventh Circuit Court of Appeals considered this issue and stated that “[t]his good
cause standard precludes modification unless the schedule cannot ‘be met despite the
diligence of the party seeking the extension.’” Id. at 670. (quoting Sosa v. Airprint
Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)). Where a party fails to abide by the
deadlines for disclosure in a scheduling order, merely demonstrating a lack of prejudice to
the opposing party is insufficient to justify late disclosures. Id.
By allowing use of expert witnesses filed after deadlines set in the scheduling
orders causes “the integrity of scheduling orders in all cases before the court, and not just
in this case, [to be] implicated.” Id. However, the Court finds that it is also consistent
with previous cases wherein a delay is not considered excessive to allow the witness
proffered to be allowed. Id. While counsel for the Defendants should take greater care in
the submission of experts, as well as complying with all court ordered deadlines, an
admonishment by the Court seems sufficient to cure any grievances that may have arisen
due to such a short delay.
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The Court finds no indication that Plaintiff filed the motion to strike in anything
other than good faith. However, to grant the motion would effectively strip the Defendant
of any expert witness to present evidence at trial and thereby unnecessarily hinder the
finder of fact in the discharge of its duty.
For the foregoing reasons, it is hereby ORDERED that the Plaintiff’s Motion to Exclude
Defendants’ Expert Testimony (Docs. 47) be Denied.
DONE this 23rd of April, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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