Carr v. County of San Diego et al

Filing 80

ORDER Granting 76 Defendants' Ex Parte Motion to Amend Expert Disclosures. Signed by Magistrate Judge Mitchell D. Dembin on 11/18/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CARR,

Case No.: 19cv1139-JLS-MDD
Plaintiff,

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v.

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COUNTY OF SAN DIEGO, et al.,
Defendants.

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ORDER GRANTING
DEFENDANTS' EX PARTE
MOTION TO AMEND EXPERT
DISCLOSURES
[ECF No. 76]

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On September 17, 2021 in connection with summary judgment

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proceedings, the Court granted William Carr’s (“Plaintiff”) motion to strike

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the declaration of Lieutenant Criss Cross, finding that Lt. Cross should have

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been disclosed as a Federal Rule of Civil Procedure 26(a)(2)(B) expert witness

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accompanied by a written report. (ECF No. 72 at 6-9). The Court specifically

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found that Defendants’ failure to properly disclose Lt. Cross “was neither

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substantially justified nor harmless” at the summary judgment stage. (Id. at

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9). Now, Defendants move to amend their expert disclosures to designate Lt.

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Cross pursuant to Rule 26(a)(2)(B). (ECF No. 76). Plaintiff opposes

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Defendants’ motion. (ECF No. 78).

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“If a party fails to provide information or identify a witness as required

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in [Federal] Rule [of Civil Procedure] 26(a) . . . , the party is not allowed to

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use that information or witness to supply evidence on a motion, at a hearing,

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or at a trial, unless the failure was substantially justified or is harmless.”

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Fed. R. Civ. P. 37(c)(1).
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19cv1139-JLS-MDD

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The Court finds that Defendants’ failure to properly disclose Lt. Cross is

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not substantially justified for the reasons stated in the Court’s order granting

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Plaintiff’s motion to strike Lt. Cross’s declaration. (See ECF No. 72 at 6-9).

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However, the Court now finds that error is harmless. The case is in a

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different procedural posture than it was when the Court ruled on Defendants’

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motion for summary judgment. At that stage, the Court would have

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considered Lt. Cross’s declaration without providing Plaintiff an opportunity

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to properly rebut his statements. The parties now have time to remedy the

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error prior to the pre-trial conference before United States District Judge

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Janis L. Sammartino. This permits the Court and a jury at trial to fully

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consider the case on the merits. Accordingly, the Court GRANTS

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Defendants’ motion. (ECF No. 76). IT IS FURTHER ORDERED that

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discovery is re-opened for the following limited purpose:
1.

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Defendants must serve on Plaintiff Lt. Cross’s expert report on or

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before December 2, 2021. Any contradictory or rebuttal disclosures to Lt.

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Cross’s expert report by Plaintiff within the meaning of Federal Rule of Civil

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Procedure 26(a)(2)(D)(ii) shall be disclosed on or before January 14, 2022.
2.

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Expert discovery regarding Lt. Cross and any rebuttal expert to

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Lt. Cross shall be completed by all parties by February 11, 2022. Any

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deposition of Lt. Cross is ORDERED to occur at Defendants’ expense.
All other dates and guidelines remain as previously set. (See ECF No.

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74).
IT IS SO ORDERED.
Dated: November 18, 2021

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19cv1139-JLS-MDD