Taylor et al v. Hawley Troxell Ennis & Hawley LLP et al
Filing
1111
MEMORANDUM DECISION AND ORDER - The Hawley Troxell Defendants Motion to Exclude Expert Patrick Moran (Dkt. 907 ) and its corresponding Motions to Join (Dkts. 932 , 976 ) are GRANTED in PART and DENIED in PART. Moran may not provide case-in-chief t estimony, but he may testify as a lay and rebuttal witness. The Hawley Troxell Defendants Motion to Exclude Rebuttal Expert Lawrence M. Hile (Dkt. 908 ) and its corresponding Motions to Join (Dkts. 931 , 975 ) are GRANTED in PART and DENIED in PA RT. Hile may not provide case-in-chief testimony, but he may testify as a rebuttal expert. Plaintiffs Motion to Extend the Expert Witness Disclosure Deadlines as to Patrick Moran and Lawrence M. Hile (Dkt. 947 ) is DENIED. The Courts stay from its previous Order (Dkt. 1089 ) remains in force. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
Case 1:10-cv-00404-DCN-CWD Document 1111 Filed 03/24/21 Page 1 of 24
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DALE L. MIESEN, an individual who is
a shareholder and who is also bringing
this action on behalf of and/or in the right
of AIA Services Corporation and its
wholly owned subsidiary AIA Insurance,
Inc.,
Case No. 1:10-cv-00404-DCN
MEMORANDUM DECISION
AND ORDER REGARDING
VARIOUS MOTIONS (DKTS. 907,
908, 947, 975, 976)
Plaintiff,
v.
HAWLEY TROXELL ENNIS &
HAWLEY LLP, et al.,
Defendants,
and
CROP USA INSURANCE SERVICES,
LLC, et al.,
Defendants/Third-Party
Plaintiffs,
v.
REED TAYLOR, an individual,
Third-Party Defendant.
I.
INTRODUCTION
On April 8, 2020, Defendants Hawley Troxell Ennis & Hawley LLP, Gary D.
Babbitt, D. John Ashby, and Richard A. Riley (“Hawley Troxell Defendants”), moved to
exclude Plaintiff Dale L. Miesen’s expert Patrick Moran’s (Dkt. 907) and rebuttal expert
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witness Lawrence M. Hile’s (Dkt. 908) testimony pursuant to Rules 26(a) and 37(c) of the
Federal Rules of Civil Procedure, and Dist. Idaho Loc. Civ. R. 26.2(b). On April 29, 2020,
Defendant GemCap Lending I, LLC (“GemCap”) joined both motions. Dkts. 931, 932. On
May 17, 2020 Miesen filed a Motion to Extend the Expert Witness Disclosure Deadlines
as to Moran and Hile. Dkt. 947. Thereafter, Defendants James Beck, Michael Cashman,
Connie Henderson, R. John Taylor, Crop USA Insurance Agency, Inc., and Crop USA
Insurance Services, LLC (“Crop USA Defendants”) also joined Hawley Troxell
Defendants’ two motions to exclude. Dkts. 975, 976.
Having reviewed the record and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the interest of avoiding further delay,
and because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will decide the motions without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B).
For the reasons outlined below, the Court finds good cause to GRANT in PART and
DENY in PART the Hawley Troxell Defendants (joined by GemCap and Crop USA
Defendants) Motion to Exclude Miesen’s Expert Moran (Dkt. 907), to GRANT in PART
and DENY in PART the Hawley Troxell Defendants (joined by GemCap and Crop USA
Defendants) Motion to Exclude Miesen’s Rebuttal Expert Witness Hile (Dkt. 908), and to
DENY Miesen’s Motion to Extend Expert Witness Disclosure Deadlines (Dkt. 947).
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(2)(A) states that “a party must disclose to the
other parties the identity of any witness it may use at trial to present evidence under Federal
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Rule of Evidence 702, 703, or 705.” If a witness is one retained or specially employed to
provide expert testimony in a case, or one whose duties as the party’s employee regularly
involve giving expert testimony, the disclosure must be accompanied by an in-depth
written report. Fed. R. Civ. P. 26(a)(2)(B). If an expert is not one of the latter categories,
the witness need not prepare the same in-depth written report, but the disclosure must
convey “the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(C)(i). Additionally, a
“summary of the facts and opinions to which the witness is expected to testify” must be
disclosed. Fed. R. Civ. P. 26(a)(2)(C)(ii).
The purpose of these disclosure requirements is to “prevent surprise testimony by
ensuring that opposing parties are aware of the nature of the expert opinions prior to trial.”
DR Sys., Inc. v. Eastman Kodak Co., No. 09cv1625-H (BLM), 2009 WL 2982821, at *3 n.
2 (S.D. Cal. Sept. 14, 2009) (cleaned up). If a party fails to provide information or identify
a witness as required by the rule, the party is not allowed to use that information or witness
to supply evidence at trial, unless the failure was substantially justified or is harmless. Fed.
R. Civ. P. Rule 37(c)(1). Rule 37(c)(1) “gives teeth to [the Rule 26(a) disclosure]
requirements by forbidding the use at trial any information not properly disclosed under
Rule 26(a).” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
2001). Rule 37(c)(1) is recognized as a broadening of a court’s sanctioning power and is
“self-executing” and “automatic.” Id. Moreover, because of the automatic nature of this
sanction, courts are not required to make a finding of willfulness or bad faith prior to
excluding expert testimony at trial. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d
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1175, 1180 (9th Cir. 2008).
The trial court has wide latitude in using its discretion to issue sanctions under Rule
37(c)(1). See Yeti by Molly, 259 F.3d at 1106. The burden is on the disclosing party to show
that the delay in properly disclosing an expert witness was substantially justified or
harmless. See id. at 1106–07 (explaining that it is implicit in Rule 37(c)(1) that burden is
on party facing sanctions to prove harmlessness). Despite the severity of this exclusionary
sanction, it may be appropriate “even when a litigant’s entire cause of action or defense
has been precluded.” Id. at 1106 (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio
Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001)).
III.
DISCUSSION
The Court first addresses the motions to exclude. Then, the Court addresses
Miesen’s motion to extend. Before doing so, however, the Court highlights the Seventh
Circuit’s recent apt description of the common outcome in a scenario such as the one here:
“Parties who fall short on their disclosure obligations generally lose out on their expert
evidence, as Rule 37(c) and plenty of caselaw make plain.” Uncommon, LLC v. Spigen,
Inc., 926 F.3d 409, 419 (7th Cir. 2019) (cleaned up).
A. Exclusion of Expert Patrick Moran (Dkt. 907)
Miesen concedes that his disclosure of Moran as a case-in-chief expert and the
accompanying expert report were late. Miesen originally identified Moran as a lay person
with knowledge of this case on December 15, 2016. Dkt. 907-1, at 2. Miesen’s initial expert
witness disclosures were ultimately due on or before August 5, 2019. Dkt. 602. Moran
was not disclosed as either a retained or “non-retained” expert witness at that time. Miesen
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disclosed Moran as a “[n]on-retained expert witness,” to “respond to the opinions offered
by the expert witnesses for the Hawley Troxell Defendants” on February 21, 2020. Dkt.
907-1, at 2 (cleaned up). Months later, Miesen disclosed Moran’s corresponding written
report.
The Hawley Troxell Defendants argue that Miesen should be precluded from
offering rebuttal and/or case-in-chief expert testimony by Moran because: (1) the
disclosure of Moran as an expert witness is subject to the disclosure and written report
requirements for retained experts under Rule 26(a)(2)(B); (2) Miesen’s disclosure of Moran
as an expert and the provision of Moran’s report were untimely; and (3) Moran’s expert
testimony is improper in any event. Miesen, of course, has his counterarguments. The Court
will address the parties’ various contentions in turn.
1. Meet and Confer
As a preliminary matter, the Court addresses Miesen’s argument that the motion to
exclude Moran should be denied under Federal Rule of Civil Procedure 37(a)(1) because
the Defendants failed to meet and confer. Miesen states that if the Defendants had requested
additional disclosures or a written report prior to filing this motion, he would have willingly
complied. The Hawley Troxell Defendants argue a meet and confer meeting was not
necessary because they seek sanctions for Miesen’s failure to comply with Rule 26(a), and
not discovery. The Hawley Troxell Defendants are correct.
The Hawley Troxell Defendants moved to exclude expert witness testimony
pursuant to Federal Rules of Civil Procedure 26(a) and 37(c). Under Rule 26(a), parties are
required to make certain disclosures. Under Rule 37(a)—as opposed to Rule 37(c) which
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is at issue here—parties may move for an order compelling disclosure required by Rule
26(a) after meeting and conferring. See also Dist. Idaho Loc. Civ. R. 37.1. However, there
is no requirement under Rule 37(c) for parties to meet and confer prior to moving to exclude
testimony due to a failure to disclose, supplement an earlier response, or admit. See
Sherwood v. BNSF Ry. Co., No. 1:16-cv-00008-EJL-REB, 2018 WL 3340571, at *3 (D.
Idaho July 6, 2018).
Here, the Hawley Troxell Defendants move to exclude improperly disclosed expert
witness testimony, and thus seek sanctions under Rule 37(c), not Rule 37(a). Miesen’s
argument essentially attempts to flip the script by improperly shifting the burden of
warning him of his duties to comply with the Federal Rules of Civil Procedure to the
Defendants. Although it may be good practice to meet and confer prior to filing such
motions, the Defendants were not obligated to do so.
2. Effect of Late Disclosure
Although they contend Moran was untimely disclosed as an expert witness, the
Defendants do not dispute that the disclosure of Moran as a rebuttal expert witness is
timely. Instead, they argue that the Moran disclosure contains opinions outside the scope
of rebuttal testimony allowed under Rule 26. See Fed. R. Civ. P. 26(a)(2)(D)(ii) (stating
that—absent a stipulation or a court order—expert witness disclosures must be made: “(ii)
if the evidence is intended solely to contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other
party’s disclosure”). To the extent Moran is acting as a case-in-chief expert, the Hawley
Troxell Defendants contend that he should be prevented from so testifying. Miesen argues
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that Moran’s disclosure as a rebuttal witness was timely and that Moran should also be
permitted to offer his opinions in Miesen’s case-in-chief. Dkt. 941, at 6.
Because Miesen untimely disclosed Moran as a case-in-chief expert witness, the
Court turns to what Miesen was required to disclose and whether failure to comply with
those requirements was substantially justified or harmless.
3. Retained vs. Non-Retained
All parties agree that Moran qualifies and was timely disclosed as a lay witness in
Miesen’s initial disclosures served on December 15, 2016. Moran was identified at that
time as a lay witness with factual knowledge of “AIA Services’ refusal to honor his
appointment to the board of directors, by and through John Taylor, Connie Taylor
Henderson, James Beck and the attorneys at Hawley Troxell.” Dkt. 907-1, at 2 (cleaned
up). Moran is an attorney who previously acted as counsel for Reed Taylor in late 2006
and early 2007 in settlement negotiations in a related state court case. Dkt. 941, 16-17; Dkt.
907-2, at 2.
The parties dispute whether Moran is “retained” because Moran is not charging
Miesen a fee. Miesen asserts that lack of payment makes Moran non-retained, whereas the
Defendants maintain that payment is merely one factor in the analysis and that more
determinative factors, such as the source of the witness’s knowledge, mean Moran was
retained. Essentially, the parties debate whether Moran falls under Federal Rule of Civil
Procedure 26(a)(2)(B) or (C) because, again, under the former, a written report was
necessary. Conversely, expert witnesses not covered under Rule 26(a)(2)(B) are not
obligated to provide a written report but most disclose the subject matter of their testimony
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and a summary of their opinions. Fed. R. Civ. P. 26(a)(2)(C). There is no evidence that
Moran is regularly employed by Miesen, so the focus is on whether Moran is “retained or
specially employed” under Rule 26(a)(2)(B).
The Hawley Troxell Defendants contend that “the designation as retained or nonretained depends on how the witness came to know the underlying facts and whether they
developed opinions for litigation.” Dkt. 964, at 2 (cleaned up). As an example of this rule,
the Hawley Troxell Defendants highlight Ninth Circuit jurisprudence holding non-retained
treating physicians exempt from the disclosure requirements of Rule 26(a)(2)(B) only “to
the extent that [their] opinions were formed during the course of treatment.” Goodman v.
Staples the Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). The Hawley Troxell
Defendants point out that “the critical distinction between retained and non-retained
experts is the nature of the testimony the expert will provide, and whether it is based only
on percipient knowledge or on information reviewed in anticipation for trial.” Cantu v.
United States, No. CV 14-00219 MMM (JCGx), 2015 WL 12743881, at *5 (C.D. Cal. Apr.
6, 2015).
Miesen acknowledges that Goodman “permits the inference that non-retained
experts should be limited to testifying to the opinions that they had prior to the litigation,”
but argues the plain text of Rule 26(a)(2)(B) and (C), as well as opinions in sister circuits,
support his conclusion that an expert must be paid in order to be deemed “retained.” Dkt
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941, at 7–8.1 Neither of Miesen’s arguments is compelling.
To begin, courts are to “give the Federal Rules of Civil Procedure their plain
meaning,” and when the text is clear and unambiguous, the inquiry is complete. Business
Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 540–41 (1991) (cleaned
up). Here, the plain language of Rule 26(a)(2) does not conclusively answer the question.
The relevant language of Rule 26 is “if the witness is one retained or specially employed
to provide expert testimony in the case,” the witness must provide the required written
report. Fed. R. Civ. P. 26(a)(2)(B). Most critically, this text does not explicitly state that to
be a retained expert one must be paid.
Moreover, the Rule does not definitively align “retained” and “specially employed”
experts, meaning that a retained expert could be in separate category from those who are
specially employed. If truly separate, this would mean that “retained” and “specially
employed” have distinct meanings, and that whether a witness is retained would require a
clarifying definition from courts. Tellingly, numerous courts have indeed developed tests
to define “retained” in this context. See infra.
However, even if the two terms were intended to be the same category, there is
nothing that indicates “employed,” in this context, means “paid” instead of its other
common definitions, such as to “make use of” or to “entrust with performance of certain
acts or functions.” See, e.g., Employ, Black’s Law Dictionary (11th ed. 2019) (defining
The Hawley Troxell Defendants note that Miesen has not identified which of Moran’s opinions, if any, he
had prior to litigation, and contend that Miesen has not addressed the problem that Moran cannot unsee
what he reviewed for this litigation. The Court agrees. It is impossible for others to determine whether
Moran’s pre-suit opinions were influenced by the additional information he reviewed for this litigation.
Compliance with Rule 26(a)(2)(B) would have prevented this problem.
1
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“employ” as “1. To make use of. 2. To hire. 3. To use as an agent or substitute in
transacting business. 4. To commission and entrust with the performance of certain acts or
functions or with the management of one's affairs.”). Because the text of Rule 26 does not
plainly supply an answer to the question at hand—whether payment is a necessary
condition of a retained expert—the Court must look beyond its language.
When the caselaw is considered, it becomes evident that payment is not
determinative of whether an expert is retained. In Goodman, the Ninth Circuit held that
doctors the plaintiff intended to provide expert testimony were retained, even though they
were percipient witnesses to the medical treatment they rendered as the treating physicians.
644 F.3d at 826. The court reasoned that, because the plaintiff specifically sought that the
physicians testify about matters beyond the treatment the physicians provided plaintiff, and
because plaintiff had the doctors review information “that they hadn’t during the course of
treatment,” Rule 26(a)(2)(B) required disclosure of written reports. Id. The court
concluded, as have others, when a witness considers additional information to develop
opinions for litigation, the witness is subject to the disclosure requirements. Payment is not
necessary. Id.; see also Cantu, 2015 WL 12743881, at *5; United States. v. Sierra Pacific
Industries, No. CIV S-09-2445 KJM EFB, 2011 WL 2119078, *4 (E.D. Cal. 2011) (“The
distinguishing characteristic between expert opinions that require a report and those that
do not is whether the opinion is based on information the expert witness acquired through
percipient observations or whether, as in the case of retained experts, the opinion is based
on information provided by others or in a manner other than by being a percipient witness
to the events in issue.”).
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Moreover, the out-of-circuit cases Miesen cites do not support his position.2 For
instance, in Downey v. Bob’s Disc. Furniture Holdings, Inc., the First Circuit held that an
expert was not “retained or specially employed” because he did not hold himself out for
hire as an expert, did not charge a fee, and his opinion testimony arose “from his groundlevel involvement in the events giving rise to the litigation.” 633 F.3d 1, 6 (1st Cir. 2011).
Although it referenced payment, this was only a single, non-determinative factor in the
First Circuit’s assessment of whether an expert witness was “retained” pursuant to Rule
26(a)(2)(B). Notably, the Downey court observed in a footnote that “in some cases an onthe-scene expert whose views are not subject to the written report requirement of Rule
26(a)(2)(B) might also be retained or specially employed to develop additional opinions
for purposes of trial (and would, to that extent, trigger the written report requirement).” Id.
at 8 n.5 (emphasis in original).
The Downey court’s approach is congruent with the Goodman court’s approach.
Both cases lead to the conclusion that non-retained experts should be limited to testifying
as to the opinions that they had prior to the litigation; if their opinion was developed based
on information provided to them by a party in the course of litigation, they are more aptly
viewed as “retained.”
The other cases Miesen cites, Indianapolis Airport Auth. v. Travelers Prop. Cas.
Co. of Am., 849 F.3d 355, 370 (7th Cir. 2017), and Compass Bank v. Eager Rd. Assocs.,
2
Miesen also cites the 1993 Advisory Committee Note to Rule 26(a)(2), but Rule 26(a)(2) was significantly
amended in 2010 to address concerns about expert discovery. As such, the Court does not find an Advisory
Committee Note to the 1993 version of the rule persuasive.
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LLC, No. 4:12CV1059JCH, 2013 WL 5786634 (E.D. Mo. Oct. 28, 2013), do not support
Miesen’s position because they are factually distinguishable. They involve experts that had
specialized knowledge but were not provided additional information or facts in preparation
for trial. Here, as further explained below, Moran has reviewed numerous files and other
evidence in preparation for trial. Moreover, in Compass, the court noted that whether a
witness is paid is only one factor in determining the witness’ retention status. 2013 WL
5786634, at *4 (cleaned up). In short, the non-binding cases he cites do not support
Miesen’s position that payment is essential for an expert to be deemed “retained” under
Rule 26.
Here, Moran is not a physician or other healthcare professional. Nor does he come
to the case as a stranger—he is a lay witness. However, Moran plans to offer expert opinion
and testimony on matters that caused him to review extensive evidence beyond his personal
knowledge of this case. For example, Moran states that he “incorporates by reference the
facts and opinions contained within . . . Hile’s Report dated February 7, 2020 and any
subsequent versions unless this disclosure is supplemented to state otherwise. The material
facts provide substantially more than a summary of the facts relied up by Mr. Moran for
his opinions.” Dkt. 907-4, Exhibit B, at 3. Moran also relies on a list of itemized estimated
preliminary damages provided by Miesen, and notes he will review supplemental
disclosures by the Hawley Troxell Defendants to Miesen “and any other necessary
information” to form his opinion. Id. at 3–4. Additionally, Moran states he based his
opinion on facts provided by counsel—Roderick Bond—and “key depositions” he
anticipates reviewing. Id. at 4.
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Therefore, in order to form his expert opinions (for rebuttal and for case-in-chief)
Moran has drawn his opinion in part from facts supplied by others in preparation for trial.
In other words, like the physicians in Goodman and the hypothetical witness in Downey,
Moran has been specially employed to develop additional opinions for purposes of trial,
thereby triggering the written report requirement under Rule 26(a)(2)(B). Moran failed to
timely comply with Rule 26(a)(2)(B) by the deadline set in the scheduling order.
Although he primarily contends Moran is not a retained expert, in the alternative,
Miesen suggests that Moran’s declaration met the requirements of a written report.
However, the declaration fell short of several requirements for a written report. The
declaration does not appear to have been “prepared and signed by the witness.” Fed. R.
Civ. P. 26(a)(2)(B). It does not contain “a complete statement of all opinions the witness
will express and the basis and reasons for them.” Id. True, supplementing the report is
proper, but it must purport to be complete in the first instance. It also does not contain any
exhibits, list of publications authored by Moran, a list of cases in which he has testified, or
a statement of compensation. See id. Therefore, the declaration does not qualify as a written
report.
The Court next turns to the questions of whether the late disclosures were harmless
and justified, or whether Miesen should be sanctioned for his non-compliance by excluding
Moran’s case-in-chief expert witness testimony.3
The Hawley Troxell Defendants also contend that Moran’s rebuttal expert testimony should be wholly
excluded because it in fact is a “ploy to try to slip Mr. Moran in through the back door when he missed his
opportunity to enter through the front as a case-in-chief expert.” Dkt. 964, at 4. This issue is one that is
3
(Continued)
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4. Harmless and Justified
As noted, Rule 37(c)(1) “forbid[s] the use at trial of any information required to be
disclosed by Rule 26(a) that is not properly disclosed.” Hoffman, 541 F.3d at 1179; see
also Yeti by Molly, Ltd., 259 F.3d at 1106. Rule 37 provides:
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.
In addition to or instead of this sanction, the court, on motion and after giving
an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees,
caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1). “The party facing sanctions bears the burden of proving that its
failure to disclose the required information was substantially justified or is harmless.” R &
R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012) (citing Torres
v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008)). Factors that may assist the court in
determining whether “a violation of a discovery deadline is justified or harmless are: (1)
prejudice or surprise to the party against whom the evidence is offered; (2) the ability of
better left to trial when the specific testimony is presented. Until the Defendants’ case is presented, it would
be premature to determine what testimony is proper rebuttal testimony. After Defendants present their case,
the Court can assess whether Moran’s testimony constitutes case-in-chief opinions dressed in the disguise
of rebuttal testimony, which of course would be improper. Similarly, specific objections to Moran’s expert
testimony should be raised when he seeks to offer it at trial. Whether the testimony is speculative, improper
bolstering, cumulative, or otherwise inadmissible will depend on the specific testimony before the Court.
The Court exercises its discretion to withhold a ruling on such matters.
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that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith
or willfulness involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty,
Inc., 375 F. App’x 705, 713 (9th Cir. 2010) (citation omitted).
Miesen contends that his over six-month late disclosure was both harmless and
justified. He specifically argues that the late disclosure was justified because: (a) he lacked
the money to retain a damage and accounting expert for his case-in-chief and so only found
Moran (who was willing to testify unpaid) “by happenstance” after the Hawley Troxell
Defendants named an accounting and damages expert; (b) even if the Court finds Moran
to be “retained,” Miesen’s presumption that Moran was unretained because he was not paid
justified Miesen’s production of only the Moran Disclosure; (c) Miesen’s many and
multiple motions in this case have slowed his ability to timely and fully comply with
discovery deadlines; and (d) as Moran is a rebuttal expert, Miesen is economically and
logically justified in also using him as an expert witness in his case-in-chief. Dkt. 941, at
11–12.
The Court is unpersuaded by Miesen’s arguments. Miesen timely disclosed Moran
as a fact witness on December 15, 2016—years before Miesen’s initial expert witness
disclosures were due on August 5, 2019. On April 24, 2017, Miesen filed his Third
Amended Complaint, in which he alleged eleven counts, including breach of fiduciary
duties and contract claims. Dkt. 211. In the pleading, he alleges, among other things, that
(1) “the Hawley Troxell Defendants are liable to AIA for damages in the amount to be
proven at or before the time of trial” (id. at 66); (2) the damages were “[a]t a minimum . .
. millions of dollars” (id. at 35); and (3) defendants should be held liable “jointly and
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severally and/or individually, for all damages in an amount to be proven for each defendant
at or before trial . . . .” (id. at 79) (emphasis added).
Thus, Miesen knew for years that he would need to prove damages at trial. Yet, he
only disclosed Moran as a damages and accounting expert witness on February 21, 2020.
Miesen’s contention that that he did not know he would need to incur the expense of
retaining a damages and accounting expert until the Hawley Troxell Defendants disclosed
they were retaining one ignores his duty to prove damages and is unpersuasive. Moreover,
the record shows that Miesen’s untimely retention of Moran was the result of Miesen’s
intentional and deliberate strategy to try to prove damages through lay witnesses. It was
not until he second-guessed that strategy (after the Hawley Troxell Defendants timely
disclosed Mr. Pinkerton) that Plaintiff considered offering any expert testimony from
Moran.
Miesen suggests that this wait-and-see approach is supported by the rulings of
another Judge of this District in other cases, citing Mueller v. Auker, No. CV-04-399-SBLW, 2006 WL 4524340, at *2 (D. Idaho Nov. 28, 2006), and Adams v. United States, No.
03-0049-E-BLW, 2009 WL 1324227, at *1 (D. Idaho May 7, 2009). However, those cases
are factually distinguishable. The party in Mueller was waiting for a ruling from the Court
on a motion to amend to assert a new claim. 2006 WL 4524340, at *2. And the plaintiffs
in Adams disclosed their expert on time, but did not know that they also needed to disclose
the underlying expert whose report was attached and upon which the disclosed expert relied
on. 2009 WL 1234227, at *1. Here, Miesen simply chose not to timely disclose Moran
plain and simple. He was not awaiting a crucial ruling from the Court, and he was not
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merely confused about whether an underlying expert needed to be disclosed.
Moreover, a bright-line rule that plaintiffs do not need to disclose an expert until
defendants have done so would run directly contrary to the tenets of Federal Rule of Civil
Procedure 26(a). The Court will not so hold. In short, Miesen has not meet his burden of
proving that his failure to disclose the required information was substantially justified.
Miesen also maintains that his admittedly late disclosure and report are harmless.
Excusing Miesen’s misstep, however, would exact a significant amount of harm on the
Defendants. They would be required to re-evaluate extensive amounts of their timely
disclosed expert testimony, prepare supplemental reports, potentially designate new expert
witnesses, and delve into discovery once more on the experts’ opinions—discovery that
has taken years to complete. The practical consequence of Miesen’s request would be to
force the parties to re-engage in expert discovery that has already closed, with all its
concomitant costs and delays. This type of domino effect on discovery that has already
taken so long would cause harm to the parties and continue to bog down the Court’s docket.
The Ninth Circuit in Goodman aptly described a similar situation:
Because the plaintiff had not yet disclosed any expert reports, the defendant
made its decisions regarding defense experts under the belief that the
plaintiff’s non-medical experts would not be testifying in her case-in-chief.
The defendant’s experts developed their opinions and wrote their reports
without knowing the scope of the plaintiff’s experts’ opinions. The defendant
did not disclose an economist at all, because it thought the plaintiff would
not be presenting an economist in her case-in-chief. The district court found
that this was “obvious prejudice,” and we agree.
644 F.3d at 827 (cleaned up). So too here, Defendants have relied on Miesen’s nondisclosure in preparing their defense. Allowing Miesen to throw off this standard procedure
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of expert disclosures would work an injustice to Defendants. See id.; Ashby v. Mortimer,
No. 4:18-CV-00143-DCN, 2020 WL 572718, at *21 (D. Idaho Feb. 5, 2020). The untimely
disclosure here is far from harmless, and the Court must not permit it.
In sum, none of the factors tip in Miesen’s favor. The late disclosure has the
potential to cause significant prejudice that would not be cured by simply permitting late
disclosure, as explained. Accepting the late disclosure would greatly disrupt the trial
schedule in an already very protracted case. Lastly, the untimely disclosure was a willful
strategic choice rather than an honest mistake. Miesen weighed the costs of hiring an expert
to prove damages and other elements of his prima facie case, and only disclosed Moran
after Defendants disclosed their experts. Simply put, Moran has not established his tardy
disclosure was either justified or harmless. See Lanard Toys Ltd., 375 F. App’x at 713.
5. Conclusion
In conclusion, Moran cannot testify as a case-in-chief expert witness because he and
his report were unjustifiably disclosed at an untimely and prejudicial juncture in this
litigation. Moran’s lay and rebuttal testimony will be subject to the typical objections at
trial. Accordingly, the Motion to Exclude Moran’s Testimony is GRANTED in PART and
DENIED in PART.
B. Motion to Exclude (Dkt. 908)
The Hawley Troxell Defendants similarly move to exclude expert Hile’s testimony
under the same rules of procedure: Federal Rules of Civil Procedure 26(a) and 37(c), and
Local Civil Rule 26.2(b). Again, GemCap and the Crop USA Defendants join this motion.
Dkts. 931, 975. Hile is a retired CPA, whom Miesen wishes to give opinions regarding the
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basis for, and amounts of, the alleged damages Miesen seeks to recover from Defendants.
Like the Moran disclosure, Hile and his written report were disclosed on February 7,
2020—more than six months after the deadline for case-in-chief testimony. However,
Hile’s disclosure was timely for rebuttal testimony.
The parties repeat many of their same arguments with respect to Moran’s testimony
in seeking to exclude Hile’s testimony. Yet again, none of Miesen’s points are persuasive.
For the same reasons above, the Court will allow Hile to testify as a rebuttal witness, subject
to other objections the Defendants may lodge, but Hile may not testify as a case-in-chief
expert. Accordingly, the Motion to Exclude Hile’s Testimony is GRANTED in PART and
DENIED in PART.
C. Motion to Extend Expert Disclosures (Dkt. 947)
In the alternative to his arguments against the motions to exclude, and “in an
abundance of caution,” Miesen moves the Court to extend the expert disclosures deadline.
Dkt. 947-1, at 5. The Court will not do so.
“A schedule may be modified only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4). Where a motion to extend the deadline is filed after the deadline
that the party is seeking to extend, as is the case here, the party must show both good cause
and excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); Savage v. City of Twin Falls, No. 1:13cv-00179-ELJ-REB, 2015 WL 12681319, at *7 (D. Idaho Jan. 20, 2015) (“If made after
the deadline, the party seeking the extension must show not just good cause, but also that
the deadline was missed because of excusable neglect.” (cleaned up)).
Here, Miesen argues that his late disclosure is excusable because he didn’t know he
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would need an expert until the defense experts were disclosed, he did not have the funds to
retain an expert until his attorney reluctantly agreed, and he was unaware that Moran would
testify at no cost to him. He further asserts that an extension would not impact the
proceedings. He then blames Defendants for his late disclosure, as they had not disclosed
their experts and had also not disclosed certain documents at the time his expert disclosure
was due. For the reasons outlined above, none of Miesen’s arguments are persuasive. In
short, there is neither good cause nor excusable neglect to extend the expert disclosure
deadline.
1. Good Cause
First, Miesen has not demonstrated good cause to extend the deadline. Good cause
primarily considers the diligence of the party seeking an amendment of a scheduling order.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). As noted above,
Miesen’s choice not to disclose his experts was a deliberate, cost-benefit choice rather than
due to inadvertence, mistake, or some other explicable cause. Deliberately choosing not to
follow a deadline conclusively cuts against an argument for good cause. Jones v. Koons
Auto., Inc., No. 09-3362, 2013 WL 3713845, *8 (D. Md. July 15, 2013) (holding that the
“economic-based tactical decision not to designate an expert witness” because the party
“did not want to spend the money to hire an expert in case the parties settled” was “not
without consequence” and did not constitute good cause to extend an expired disclosure
deadline); Minden Pictures, Inc. v. Pearson Educ., Inc., 929 F. Supp. 2d 962, 967 (N.D.
Cal. 2013) (explaining that a “very late” disclosure was not substantially justified where
initial non-disclosure was strategic choice); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
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748, 759–60 (8th Cir. 2006) (holding that tactical decisions are not good cause to modify
case management orders and rejecting an attempt to re-designate “rebuttal” expert as casein-chief expert); Bruce v. Cty. of Rensselaer, No. 02-CV-0847, 2003 WL 22436281, *3
(N.D.N.Y. Oct. 20, 2003) (“Plaintiffs … made a knowing and voluntary strategy choice.
Having made that choice, they must now live with the results.”); Wells v. Rockefeller, 728
F.2d 209, 214 (3d Cir. 1984) (denying relief from the consequences of a tactical/strategic
decision); Downing v. Am. Airlines, Inc., No. 86 CV 3048, 1988 WL 49211, n. 1 (E.D.N.Y.
May 9, 1988) (stating that a “litigation strategy cannot be deemed ‘good cause’”); Berger
v. Rossignol Ski Co., 2006 WL 1095914, *5 (N.D.Cal. Apr. 25, 2006) (explaining that there
was not good cause for late amendment where the initial claim omission was “a deliberate
strategic course which plaintiffs now wish to change”); Morrison Enters., LLC v. Dravo
Corp., 638 F.3d 594 (8th Cir. 2011) (holding that there was not good cause for the requested
extension where the failure to meet a deadline was a tactical decision).
Additionally, as noted above, Miesen knew that his prima facie case involved
proving damages. So, his argument that he did not know he would need an expert to prove
millions of dollars in damages is wholly uncompelling. Miesen’s other arguments show a
lack of diligence on his part and further buttress the point that his was a weighed
economical choice, not one which carries a viable excuse. The Crop USA Defendants also
persuasively point out that Miesen does not identify which documents they purportedly
failed to disclose and how such failure affected his decision regarding expert disclosures.
Miesen merely states that unidentified documents were not disclosed. The discovery
deadline was extended several times—for almost two years, giving Miesen plenty of time
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to review discovery and make his decision. Plus, blaming Defendants for not disclosing
their experts is meritless because Defendants timely disclosed their experts in accordance
with the Court’s schedule and the typical course of civil procedure. The record simply does
not support Miesen’s assertion that Defendants were responsible for his failure to timely
disclose his experts.
Accordingly, the Court does not find good cause to extend the expert disclosure
deadline. The absence of good cause is reason enough for the Court to deny Miesen’s
motion.
2. Excusable Neglect
Nevertheless, Miesen has also failed to show excusable neglect. “To determine
whether a party’s failure to meet a deadline constitutes ‘excusable neglect,’ courts must
apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing
party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason
for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). District courts have broad discretion
in determining whether inaction constitutes excusable neglect due to the factual and
equitable nature of the doctrine. See id. at 1258.
As explained above, extending the deadline would significantly prejudice
Defendants. Prejudice requires greater harm than simply that relief would delay resolution
of the case. Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009). Here, the harm
would be much more than mere delay. Defendants would have to essentially re-do expert
discovery, which would not only prolong this already lengthy case, but would also force
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them to incur significant expenses. This prejudice is compounded by the reliance
Defendants placed on Miesen’s nondisclosure in preparing a defense. In addition, Miesen’s
delay was lengthy. It was not a mere few days or weeks. His disclosures were more than
six months late. And, the Court has explained the impact an extension would have on these
already protracted proceedings. The Court will not permit another round of expert
discovery. Again, Miesen’s reason for the delay was a deliberate choice. Lastly, there does
not seem to be an aspect of good faith or bad faith here. Rather, the choice was made due
to financial strategic reasons. Now, Miesen must bear the costs of that decision. His neglect
is not excusable, which provides an independent reason to deny his motion.
3. Conclusion
Because Miesen has not demonstrated good cause or excusable neglect, the Court
exercises its discretion to DENY Miesen’s Motion to Extend.
IV.
CONCLUSION
This situation is not one in which the Court “mindlessly” seeks to enforce an
arbitrary deadline for some arbitrary reason. See Wong v. Regents of Univ. of Cal., 410
F.3d 1052, 1060 (9th Cir. 2005). The expert witness disclosure deadline was necessary to
move this protracted case along. The Court has already provided five extensions to
discovery deadlines—totaling almost two years. See Dkt. 191 (original deadline of
September 1, 2017); see also Dkts. 274, 398, 484, 522, 602 (subsequent orders extending
the deadline). The Court also warned the parties numerous times that its case management
orders and discovery deadlines had to be followed. E.g., Dkts. 602, 712, 800, 843, 865,
943. Still, Miesen failed to follow the discovery deadlines. He was not justified in doing
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so. His follies were not harmless. Thus, the Court will utilize its discretion to disallow
expert testimony from Moran and Hile in Miesen’s case-in-chief, and to deny Miesen’s
request to extend the expert witness disclosure deadlines. Lesser sanctions simply will not
remediate the error at this juncture of the proceedings.
V.
ORDER
1. The Hawley Troxell Defendants’ Motion to Exclude Expert Patrick Moran (Dkt.
907) and its corresponding Motions to Join (Dkts. 932, 976) are GRANTED in
PART and DENIED in PART. Moran may not provide case-in-chief testimony,
but he may testify as a lay and rebuttal witness.
2. The Hawley Troxell Defendants’ Motion to Exclude Rebuttal Expert Lawrence
M. Hile (Dkt. 908) and its corresponding Motions to Join (Dkts. 931, 975) are
GRANTED in PART and DENIED in PART. Hile may not provide case-inchief testimony, but he may testify as a rebuttal expert.
3. Plaintiff’s Motion to Extend the Expert Witness Disclosure Deadlines as to
Patrick Moran and Lawrence M. Hile (Dkt. 947) is DENIED.
4. The Court’s stay from its previous Order (Dkt. 1089) remains in force.
DATED: March 24, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge
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