Levingston v. Luna et al
ORDER DENYING Dfts' 17 Motion to Strike and Preclude Plaintiff's Expert Witness as set out. Plf is to supplement her disclosures with the required supporting material NLT 2/23/18. Signed by Senior Judge Callie V. S. Granade on 2/14/18. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ELIZABETH LEVINGSTON, as
Administratrix of the Estate of
LEVINGSTON, II, Deceased
JOSE AREVALO LUNA;
) CIVIL ACTION NO. 17-0280-CG-B
This matter is before the Court on Defendants’ Motion to Strike and Preclude
Plaintiff’s Expert Witness pursuant to Federal Rules of Civil Procedure 16(f)(1)(c),
26(a)(2), and 37(c)(1) due to Plaintiff’s failure to comply with the Court’s Rule 16(b)
Scheduling Order. (Doc. 17). After review of Defendants’ Motion and for the
reasons set forth herein below, Defendants’ Motion (Doc. 17) is DENIED.
Plaintiff filed this wrongful death action on May 16, 2017, in the Circuit
Court of Mobile County, Alabama following the death of George Levingston, II, as a
result of a wreck involving a tractor trailer driven by Defendant Jose Arevalo Luna
(“Luna”). (Doc. 1). The action was subsequently removed to this Court on June 19,
2017. (Id.) On August 4, 2017, this Court entered a Rule 16(b) Scheduling Order
which set the deadline for Plaintiff to disclose experts pursuant to Federal Rule of
Civil Procedure 26(a)(2) for November 13, 2017. (Doc. 7 at 2). The Scheduling
Order also set the discovery deadline for January 12, 2018. (Id. at 1).
On August 17, 2017, Defendants propounded their first set of discovery to
Plaintiff to which Plaintiff responded on September 20, 2017. (Doc. 17 at 2). In
response to Defendants’ request for Plaintiff to identify expert witnesses she
intended to call at trial, Plaintiff identified Bradley Parden (“Parden”) with Data
Recovery Solutions, Southeast Forensic Consultants1 and indicated
supplementation would be forthcoming. (Id.) Defendants’ Requests for Production
additionally requested the curriculum vitae, relevant correspondence, and
additional supporting documents related to Plaintiff’s experts. (Id. at 3). On
September 6, 2017, Defendants were given, via email, an “Extraction Report” which
Defendants understood to be a download of information of Luna’s cellphone. (Id.)
Seven days after the expert disclosure deadline, on November 20, 2017, Plaintiff’s
counsel sent Defendants’ counsel an email stating: “Please see attached the
supplemental report of our expert. Thank you.” (Doc. 17-3). Attached to the email
was a “Data Recovery Solutions LLC Forensic Report” prepared by Parden. (Doc.
Defendants filed the instant motion on December 7, 2017, asserting that
Plaintiff should be precluded from using any expert opinions or testimony at trial
due to Plaintiff’s failure to comply with the Rule 16(b) Scheduling Order or Federal
Rule 26(a)(2). (Doc. 17, generally). On January 24, 2018, Plaintiff timely responded
Parden is described by Plaintiff as a “cell phone download expert”. (Doc. 31 at 1).
to Defendants’ motion arguing Plaintiff properly disclosed its expert witness, that
no prejudice would result should Plaintiff’s expert be allowed to testify, or that
alternatively, Plaintiff’s failure to properly disclose, if such occurred, was the result
of excusable neglect and should not prevent the expert’s testimony at trial. (Doc.
31, generally).2 Defendants timely replied on January 31, 2017. (Doc. 33).
Defendants’ motion is straight forward, it seeks exclusion of Plaintiff’s expert,
Parden, based on Plaintiff’s failure to comply with the expert disclosure deadline in
this Court’s Scheduling Order and pursuant to Rule 26(a)(2) because the untimely
disclosure still failed to provide the other related documents required by the rules,
i.e., curriculum vitae, list of cases where expert was involved, fee schedule, etc.
(Docs. 17, 33, generally).
In response, Plaintiff argues that her expert disclosures were timely. (Doc.
31 at 4). More specifically, Plaintiff asserts Parden’s identity was disclosed within
three weeks of the underlying wreck occurring, that counsel for the parties
exchanged thirteen emails and numerous phone calls regarding Plaintiff’s expert,
that defense counsel was present at two separate meetings wherein Parden
downloaded the content of Luna’s cell phone, that Parden was disclosed in response
Plaintiff alternatively seeks, in her response, a belated extension of the expert
disclosure deadlines. However, inclusion of such a request in a response to a motion
does not render the requests properly before this Court and the Court will not
entertain Plaintiff’s request at this time. See Clark v. Hill, 2013 WL 6987627 *5
(N.D. Ala. December 11, 2013).
to written discovery and that Parden’s first expert report, identified as an
“Extraction Report” was provided to Defendants prior to the deadline to provide
expert reports. (Id.) Plaintiff alternatively asserts that Defendants will not be
unduly prejudiced should Parden be allowed to testify given Plaintiff’s longstanding
knowledge of Parden, because Plaintiffs have had their own similar expert, and
because trial was still eight months away when Parden’s report was provided. (Doc.
31 at 4-6). Lastly, Plaintiff asserts that even if Plaintiff’s expert disclosure was not
timely, and would cause undue prejudice, Parden should still be allowed to testify
because the untimeliness was the result of excusable neglect, i.e., Plaintiff’s
counsel’s improperly calendaring the expert disclosure deadline. (Doc. 31 at 6-8).
Defendants do not contest that Parden’s identity was known prior to the
deadline for expert disclosures and there is no dispute that Parden did provide an
Extraction Report prior to the expert disclosure deadline, although Defendants
contest that the same was an actual expert report. The parties also agree that
Plaintiff did provide a second report to Defendants, albeit seven days after the
relevant deadline. However, in reply, Defendants argue that even if the untimely
disclosure was not prejudicial or was the result of excusable neglect, to date,
Plaintiff’s disclosures remain unjustifiably insufficient pursuant to Federal Rule 26,
which is prejudicial because discovery is now closed. (Doc. 33, generally).
The relevant portion of this Court’s Scheduling Order states as follows:
EXPERT TESTIMONY. The disclosure of expert testimony as required
by Fed.R.Civ.P. 26(a)(2) is to be made by Plaintiff on or before
November 13, 2017. The disclosure of expert testimony as required by
Fed.R.Civ.P. 26(a)(2) is to be made by Defendants on or before
December 13, 2017.
(Doc. 7 at ¶ 6). Federal Rule of Civil Procedure 26 requires that any expert
witness “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.” Fed. R. Civ. P. 26(a)(2)(B). The Rule
26(a)(2)(B) report must contain:
a complete statement of all opinions the witness will express
and the basis and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness's qualifications, including a list of all publications
authored in the previous 10 years;
a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and
testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). “A party that without substantial justification fails to
disclose information required by Rule 26(a) ... is not, unless such failure is
harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed.” Fed.R.Civ.P. 37(c)(1). The burden is on the
nondisclosing party to demonstrate either that its failure to disclose was
substantially justified or that the failure is harmless. See Abrams v. Ciba Specialty
Chemicals Corp., 2010 WL 779283, note 13 (S.D. Ala. March 2, 2010) (citations
omitted). This determination is left to the broad discretion of the lower court.
Fed.R.Civ.P. 37(c). Similarly, the determination whether to exclude the nondisclosed information or to select a different sanction is left to the discretion of the
lower court. Id.; See also Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004)
(opining that it is “within the sound discretion of the trial judge to sanction
plaintiffs for their failure to disclose by enforcing the unambiguous terms of Rule
In the instant action, Plaintiff argues that her expert disclosures were timely
because she both identified the expert and provided Defendants with an Extraction
Report prior to November 13, 2017. Plaintiff’s argument is not compelling as it
clear that the Extraction Report does not contain the expert’s opinions. (See Doc.
17-2). Therefore, this Court agrees, that the disclosure of Plaintiff’s expert report
produced on November 20, 2017, was untimely. As a result, it must be determined
in this instance, whether Plaintiff was justified in her untimeliness and/or whether
her non-compliance was harmless.
A court determining whether a failure to disclose was substantially justified
or harmless is guided by the following factors: (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 disclose the evidence. Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols.,
LLC, 845 F. Supp. 2d 1241, 1250–51 (M.D. Fla. 2012) (quotation and citation
Plaintiff does not use the terms “justified” or “harmless”, but argues that her
untimeliness was inadvertent and the result of a calendaring error on the part of
office staff. Plaintiff also urges that because Defendants have known of the expert,
were present when the cell phone extractions took place, had time to depose the
expert prior to the close of discovery, and because trial was still eight months away
when the report was provided, Defendants are not prejudiced by the seven-day
delay in receiving Parden’s report. (Doc 31, generally). Plaintiff has additionally
pointed out factual distinctions between the instant action and every case cited to
by Defendants in their motion supporting exclusion of Parden. This Court has
reviewed each of those cases and agrees that the factual distinctions are substantive
in that almost all of the cases relied on by Defendants involved circumstances
wherein disclosures were significantly more delayed, where experts were wholly
unknown prior to the untimely disclosures, and/or the disclosures either provided
no report whatsoever, or the reports did not contain any of the expert’s anticipated
Keeping in mind that “the expert witness discovery rules are designed to
allow both sides in a case to prepare their cases adequately and to prevent
surprise,” Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled on
See White v. Volvo Trucks of North America, Inc., 211 F.R.D. 668, 669-70 (M.D.
Ala. 2002); St. Paul Fire and Marine Ins. Co. v. Drummond Co., 2013 WL 12147716
*5 (N.D. Ala. January 28, 2013); Bearint v. Dorel Juvenile Group, Inc., 389 F.3d
1339, 1348-49, 1353-54 (11th Cir. 2004); Davis v. City of Springfield, 2006 WL
2699333, at *3 (C.D. Ill. September 19, 2006); Regents v. Genesearch, LLC, 81 Fed.
Appx. 335, 337 (Fed. Cir. 2003); LaPlace-Bayard v. Battle, 295 F.3d 157, 161-62 (1st
other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58 (2006), this Court
does not find that total exclusion of Plaintiff’s expert witness is warranted at this
time. Rather, because Defendants have known of the existence of Plaintiff’s
retained expert and of his identity and because Defendants have actively
participated in the meetings wherein Plaintiff’s expert extracted the cell phone data
and lastly, because the expert’s report was delayed only seven days, the Court finds
that the factors to be considered weigh in Plaintiff’s favor. That is, Defendants were
not surprised, there remained time to conduct necessary discovery after the delay,
trial has not been disrupted, the expert will play a significant role in Plaintiff’s case,
and the seven-day delay was the result of an inadvertent mistake. Accordingly, the
untimeliness of the production of the expert report was harmless. For many of the
same reasons and because Parden’s report does, in fact, include a list of his training
and certification, a general description of the types of trials in which he has
participated, a list of items he reviewed and the basis of his opinions, this Court
also finds that Plaintiff’s failure to provide Defendants with Parden’s curriculum
vitae, fee schedule, documentation supporting his opinion, etc., (to the extent they
may exist) pursuant to Rule 26 is equally harmless.4 That being said, if Plaintiff
has still not provided Defendants with the supporting documentation pursuant to
Defendants, on multiple occasions, reference Plaintiff’s alleged failure to
adequately supplement its responses to Defendants’ discovery request in support of
exclusion of Parden. While Defendants may be correct that Plaintiff’s discovery
responses should have been supplemented, no motion to compel has been or is
currently before this Court and even if Plaintiff were to supplement, it would not
cure the alleged deficiencies with her expert disclosures.
Rule 26 as Defendants contend, then Plaintiff’s disclosures continue to be noncompliant and supplementation is warranted.5 See Prieto v. Malgor, 361 F.3d 1313,
1317-18 (11th Cir. 2004) (“Notice of the expert witness' name is not enough. Each
witness must provide a written report containing ‘a complete statement of all
opinions to be expressed and the basis and reasons therefor,’ as well as information
about the data considered, the witness' qualifications, the compensation earned,
and any other recent cases in which he or she offered testimony.”) (citing Rule
26(a)(2)(B) of Federal Rules of Civil Procedure). As such, Plaintiff is ORDERED to
supplement her disclosures with the required supporting material by not later
than February 23, 2018. See Heard v. Town of Camp Hill, 2017 WL 3622781 at
*4 (M.D. Ala. August 23, 2017) citing to Brown v. Best Foods, 169 F.R.D. 385, 389
(N.D. Ala. 1996) (ordering supplemental Rule 26(a)(2) disclosures as a substitute to
DONE and ORDERED this 14th day of February, 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
This Court’s leniency should not be interpreted as an opportunity to freely
supplement Parden’s report. Further, to the extent that Defendants request that
this Court exclude any future supplemental expert report that includes “additional
opinions, facts, support, qualifications, or other information” such a motion is
premature at this time and the Court will consider the same on the merits if and
when the issue arises.
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