Smiley v. Hologic, Inc. et al

Filing 32

ORDER granting in part and denying in part 28 Defendant's Motion to Strike Plaintiff's Designation of Expert Witness James Sevel. As provided in the attached Order, the Court DENIES the motion to strike the designation but ORDERS that Mr . Sevel is precluded from testifying or supplying evidence at trial or in connection with any summary judgment motion or response. Further, the Court ORDERS that the discovery deadline is extended to October 28, 2016, for the sole purpose of permitt ing Defendant the opportunity to depose Mr. Sevel. Finally, the Court DENIES WITHOUT PREJUDICE Defendants motion to exclude Mr. Sevels testimony under Rule 702, Fed. R. Ev., as premature. Defendant may refile its motion in the event that Mr. Sevel is proffered as a witness in connection with any other pretrial motion or response. Signed by Magistrate Judge Mitchell D. Dembin on 9/22/16. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 16cv158-WQH-MDD

KARMEN SMILEY,
v.

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HOLOGIC, INC.,
Defendant.

ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT’S MOTION TO
STRIKE PLAINTIFF’S EXPERT
JAMES SEVEL
[ECF NO. 28]

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Before the Court is Defendant’s Motion to Strike Plaintiff’s Expert

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James Sevel, filed on September 9, 2016. (ECF No. 28). Plaintiff responded

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in opposition on September 21, 2016. (ECF No. 31).

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BACKGROUND
As required by the operative Scheduling Order, Plaintiff provided her

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expert disclosures to Defendant on August 5, 2016. Included in the

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disclosures was information regarding potential expert witness James Sevel.
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Plaintiff disclosed the following regarding Mr. Sevel:

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James Sevel is a computer forensics expert. Mr. Sevel is
expected to testify regarding availability of data to Hologic, in
contrast with the data actually produced by Hologic in this
matter. He may offer testimony concerning the computer
hardware and software systems used at Hologic during Karmen
Smiley's tenure. Mr. Sevel may also be asked to provide computer
forensic evaluations of the Hologic information systems should
same be deemed necessary and appropriate. Mr. Sevel does not
have a report to submit in connection with Rule 26. Hologic's
ultimate compliance with Ms. Smiley's discovery requests, which
is not yet to conclusion, will in part be determinative on whether
Mr. Sevel will testify at the trial or not. In the current absence of
sufficient information available from Hologic, Mr. Sevel's potential
opinions are still to be determined. Mr. Sevel's curriculum vitae is
attached.

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See Exhibit A, ¶ 3, to Declaration of Christopher W. Todd. (ECF No. 31-1 at
7-8).

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Defendant contends that Plaintiff failed to provide a written report in

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connection with the disclosure of Mr. Sevel as required by Rule 26(a)(2)(B),

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Fed. R. Civ.P., and, as a consequence, the designation of Mr. Sevel must be

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struck. (ECF No. 28-1 at 2-4). Defendant also challenges the admissibility of

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any testimony by Mr. Sevel under Rule 702, Fed. R. Ev. Plaintiff’s response

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is that it is unlikely that Mr. Sevel will testify at trial so that an expert

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report is not required. (ECF No. 31 at 2-3).

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LEGAL STANDARD
Rule 26(a)(2), Fed. R. Civ. P., governs expert disclosures. Rule

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26(a)(2)(A) provides that “a party must disclose to the other parties the

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identity of any witness it may use at trial to present [expert testimony].”

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(emphasis added). Rule 26(a)(2)(B) provides that “this disclosure must be
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accompanied by an expert report . . . if the witness is one retained or specially

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employed to provide expert testimony in the case.” (emphasis added).

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Rule 1, Fed. R. Civ. P. provides that the Federal Rules of Civil

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Procedure “should be construed, administered, and employed by the court

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and the parties to secure the just, speedy and inexpensive determination of

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every action and proceeding.”

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DISCUSSION

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Although not addressed by either party – Plaintiff offered no legal

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support for her position and Defendant assumed that an expert report was

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required by Rule 26(a)(2)(B) – this motion highlights what one court has

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described as a “loophole” in the expert disclosure rules. See Perea v. Conner,

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et al., No. CIV-13-00697-KG-LAM, 2015 WL 11111312 *3 (D. N.M. March 23,

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2015). Witnesses are required to provide an expert report under Rule

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26(a)(2)(B) only if their identities are required to be disclosed under Rule

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26(a)(2)(A). That is, only expert witnesses who may testify at trial must be

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identified and provide reports. Id. at *2 (no disclosure required for expert

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witnesses for Daubert proceedings); In re Regions Morgan Keegan Securities

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Litigation, No. 09-md-2009MaV, 2012 WL 12840260 *3 (W. D. Tenn. Jan. 4,

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2012) (no disclosure required for expert witnesses for class action fairness

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hearings); Arble v. State Farm Mutual Ins. Co., 272 F.R.D. 604, 605-06 (D.

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N.M. 2011) (Daubert hearings). In South Yuba River Citizens League v.

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National Marine Fisheries Service, 257 F.R.D. 607, 610-11 (E.D. Cal. 2009),

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although the court agreed that the expert disclosures apply only to witnesses

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intended to be used at trial, it found that courts had extended the disclosure

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rules to summary judgment proceedings and assumed, without deciding, that

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the disclosure rules also applied to preliminary injunction proceedings
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because in both instances the expert “has entered the judicial arena.” Id. at

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611 (citations omitted).

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Applying the plain language of the Rule to this case, and in accord with

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the cases cited above, this Court finds that to the extent Plaintiff does not

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intend to use Mr. Sevel as a witness at trial or in connection with summary

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judgment proceedings, Plaintiff was under no obligation to disclose Mr. Sevel

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as an expert witness, nor, having disclosed his identity, provide his expert

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report to Defendant. To the extent that Plaintiff did intend to have Mr. Sevel

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testify at trial or in connection with summary judgment proceedings, the

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Court finds that Plaintiff has violated the expert disclosure requirements of

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Rule 26(a)(2) and precludes Mr. Sevel’s testimony, including by declaration,

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at trial or in connection with summary judgment proceedings under Rule

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37(c)(1).

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Plaintiff suggests that she may use Mr. Sevel as an expert witness at

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some future motion hearing regarding the adequacy of Defendant’s discovery

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responses and productions. (ECF No. 31 at 2-3). This Court’s ruling will not

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preclude Plaintiff from offering his testimony in that regard. The question of

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the admissibility of his testimony under Rule 702, Fed. R. Ev., however, is

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premature and speculative and, in any event, is for the trial judge at the

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appropriate time.

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That said, the Court is mindful of its responsibilities under Rule 1, Fed.

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R. Civ. P. In Perea and in Arble, each court addressed the unfairness of

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allowing experts not covered by the disclosure rules to testify without

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providing some relief to the opposing party. Perea v. Connor, 2015 WL

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11111312 *3; Arble v. State Farm Mutual Ins. Co., 272 F.R.D. at 606-07.

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Accordingly, although discovery closes on September 23, 2016, Defendant is
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granted leave to depose Mr. Sevel until October 28, 2016. Regardless of

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whether Defendant deposes Mr. Sevel during this time frame, it may seek

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additional relief from the trial judge in the event Plaintiff proffers Mr. Sevel

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as a witness in connection with other pretrial proceedings.

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CONCLUSION
Defendant’s motion to strike the designation of James Sevel is

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GRANTED IN PART AND DENIED IN PART. The Court DENIES the

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motion to strike the designation but ORDERS that Mr. Sevel is precluded

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from testifying or supplying evidence at trial or in connection with any

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summary judgment motion or response. Further, the Court ORDERS that

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the discovery deadline is extended to October 28, 2016, for the sole purpose of

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permitting Defendant the opportunity to depose Mr. Sevel. Finally, the

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Court DENIES WITHOUT PREJUDICE Defendant’s motion to exclude Mr.

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Sevel’s testimony under Rule 702, Fed. R. Ev., as premature. Defendant may

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refile its motion in the event that Mr. Sevel is proffered as a witness in

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connection with any other pretrial motion or response.

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IT IS SO ORDERED.
Dated: September 22, 2016

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