Chavarria v. Management & Training Corporation et al

Filing 44

ORDER Denying in Part and Granting in Part Plaintiff's 31 Motion to Strike. Signed by Judge Marilyn L. Huff on 6/5/2017. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JESSE CHAVARRIA,

Case No.: 3:16-cv-00617-H-RBB
Plaintiff,

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ORDER DENYING IN PART AND
GRANTING IN PART PLAINTIFF’S
MOTION TO STRIKE

v.
MANAGEMENT & TRAINING
CORPORATION, a corporation, and
DOES 1 through 100, inclusive,

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[Doc. No. 31]

Defendants.

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On December 10, 2015, Plaintiff Jesse Chavarria (“Plaintiff”) filed an action in the

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California Imperial County Superior Court against Defendant Management & Training

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Corporation (“Defendant”). (Doc. No. 1-2 at 3.) On March 10, 2016, Defendant

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removed the case to the Federal Court for the Southern District of California and filed an

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answer. (Doc. Nos. 1, 2.) On April 17, 2017, Plaintiff filed a motion to exclude

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Defendant’s expert witnesses. (Doc. No. 31.) Defendant filed an opposition to Plaintiff’s

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motion on May 16, 2017. (Doc. No. 35.) Plaintiff filed a reply to Defendant’s opposition

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on May 26, 2017. (Doc. No. 39.) On June 5, 2017, the Court held a hearing on the

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motion to strike. Attorneys Geniene B. Stillwell and Freda Tjoarman appeared on behalf

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of Plaintiff. Attorney Serafin H. Tagarao appeared on behalf of Defendant.

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3:16-cv-00617-H-RBB

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Plaintiff moves to exclude Defendant’s three expert witnesses pursuant to Federal

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Rule of Civil Procedure 37 because Defendant failed to comply with the disclosure

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requirements of Federal Rule of Civil Procedure 26, as well as the Court’s scheduling

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order. (Doc. No. 31-1 at 9-10.) As part of their initial disclosures, Federal Rule of Civil

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Procedure 26(2) requires parties to disclose any expert witnesses, along with an expert

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report including the information detailed in Rule 26(a)(2)(B)(i)-(vi). Parties are to make

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these initial disclosures “at the times and in the sequence that the court orders.” Fed. R.

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Civ. P. 26(a)(2)(D). “If a party fails to provide information or identify a witness as

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required by Rule 26(a) or (e), the party is not allowed to use that information or witness

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to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

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substantially justified or is harmless.” Fed. R. Civ. P. 37(c).

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Plaintiff argues that Defendant’s three expert witnesses, Edward L. Bennett, James

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E. Rosenberg, and Jennie McNulty, should be excluded because Defendant failed to

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properly disclose these witnesses. Plaintiff claims Defendant failed to timely designate

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any of the witnesses, failed to provide timely reports, and failed to make the witnesses

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available for deposition. (Doc. No. 31-1 at 5-6.)

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In its opposition brief, Defendant does not contest that it failed to timely designate

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its experts or provide the experts’ reports. Defendant argues, however, that Plaintiff has

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not been prejudiced by the delay and any prejudice can be cured. (Doc. No. 35 at 4.)

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Defendant claims it provided Plaintiff with Dr. Bennett’s expert report on April 20, 2017,

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after the motion to strike had been filed. (Id.)

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At the hearing, Plaintiff’s counsel acknowledged it received Dr. Bennett’s report

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but had not yet deposed him. Defense counsel agreed to make Dr. Bennett available for

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deposition and to pay the fees and expert costs related to the deposition. As Defendant

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will bear the cost of the late deposition, and there is still sufficient time before trial, the

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Court finds that the delay as to Dr. Bennett is harmless and denies Plaintiff’s request to

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strike him. Defendant is to bear the fees and expert costs of deposing Dr. Bennett.

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3:16-cv-00617-H-RBB

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Plaintiff shall supplement its disclosures regarding rebuttal evidence under Fed. R.

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Civ. P. 26(a)(2)(D)(ii) by June 26, 2017. All expert discovery shall be completed by the

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parties by the Pretrial Conference, now scheduled for July 24, 2017.

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As for the remaining experts, James E. Rosenberg and Jennie McNulty, Plaintiff

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has received no expert reports, nor any indication of when they will be forthcoming. At

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the hearing, defense counsel agreed to strike these witnesses. As such, the Court grants

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Plaintiff’s motion as to expert witnesses James E. Rosenberg and Jennie McNulty and

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excludes their testimony pursuant the Federal Rule of Civil Procedure 37.

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Plaintiff separately seeks to exclude the Defendant’s experts’ testimony on the

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ground there are insufficient under Federal Rule of Evidence 702. Federal Rule of

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Evidence 702 allows expert testimony when “scientific, technical, or other specialized

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knowledge will help the trier of fact to understand the evidence or to determine a fact in

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issue.” The district court acts as a gatekeeper to assure the reliability of this expert

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testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). The

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court’s inquiry under Rule 702 must be flexible and accounts for the “nature of the issue,

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the expert’s particular expertise, and the subject of his testimony.” Kumho Tire Co. v.

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Carmichael, 526 U.S. 137, 150 (1999). Whether to admit or exclude expert testimony

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under Rule 702 is left to the district court’s discretion. Id. at 152. Exercising its

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discretion, the Court finds that Dr. Bennett’s testimony would be helpful to the trier of

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fact and rests on a reliable foundation. As such, the Court’ rejects Plaintiff’s argument

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under Fed. R. Evid. 702.

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IT IS SO ORDERED.
DATED: June 5, 2016
Hon. Marilyn L. Huff
United States District Judge

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3:16-cv-00617-H-RBB