Wilcox v. Bibin et al

Filing 58

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that Defendants/Counterclaimants Motion to Strike Disclosures of Expert Witness Michael Larson and Exclude His Testimony at Trial (Docket No. 39 ) is GRANTED. Plaintiff/Counterdefendants Motion fo r Filings Made Under Seal (Docket No. 43 ) is arguably moot. However, it is on file and appears to contain sensitive information that should be sealed/redacted. Accordingly, for the same reasons articulated in Judge Lodges 2/24/2016 Order, the Motio n is GRANTED, but only insofar as a protective order is warranted. Within two weeks of the entry of this Memorandum Decision and Order, the parties are to submit a joint protective order to the Court for its consideration that would ostensibly accoun t for the information at-issue within Plaintiffs Motion for Filings Made Under Seal (Docket No. 43). Failure to do so mayresult in the unsealing of Docket No. 44 . Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) Modified on 8/3/2017 (cjs).

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 2:15-cv-00261-EJL-REB

CRAIG WILCOX, an individual
Plaintiff/Counterdefendant

MEMORANDUM DECISION AND
ORDER RE:

vs.
MICHAEL J. BIBIN AND ASSOCIATES, CPA,
P.A., an Idaho Corporation, and MICHAEL BIBIN,
an individual
Defendants/Counterclaimants.

MOTION TO STRIKE
DISCLOSURES OF EXPERT
WITNESS MICHAEL LARSON AND
EXCLUDE HIS TESTIMONY AT
TRIAL
(Docket No. 39)
MOTION FOR FILINGS MADE
UNDER SEAL
(Docket No. 43)

Now pending before the Court are: (1) Defendants/Counterclaimants’ Motion to Strike
Disclosures of Expert Witness Michael Larson and Exclude His Testimony at Trial (Docket No.
39); and (2) Plaintiff/Counterdefendant’s Motion for Filings Made Under Seal (Docket No. 43).
Having carefully considered the record and otherwise being fully advised, the undersigned enters
the following Memorandum Decision and Order:
BACKGROUND
On October 14, 2015, the parties submitted a stipulated Litigation Plan, proposing an
August 1, 2016 deadline for Plaintiff/Counterdefendant Craig Wilcox (“Plaintiff”) to “disclose
expert witnesses/reports.” See Lit. Plan (Docket No. 16). U.S. District Judge Edward J. Lodge
ultimately incorporated the August 1, 2016 deadline for Plaintiff’s expert disclosures into the
Court’s October 23, 2015 Scheduling Order. See Sched. Order (Docket No. 17) (“Disclosure of
Experts: The Plaintiff shall disclose expert witnesses and the expected testimony of those
MEMORANDUM DECISION AND ORDER - 1

witnesses on or before August 1, 2016.”) (emphasis in original). Relevant here, the Scheduling
Order also provided:
Rules Governing Disclosures of Expert Witnesses: Within the deadlines for the
disclosure of expert witnesses set out above, the parties shall also provide, for each
expert disclosed, the report described in Fed. R. Civ. P. 26(a)(2)(B), as modified by
Local Rule 26.2(b). Supplementation to the expert witness report shall be done in
accordance with Fed. R. Civ. P. 26(e)(1). Pursuant to Local Rule 26.2(b), expert
witnesses will not be allowed to offer any opinion not disclosed in the mandatory
Rule 26 disclosures, supplementation, or deposition. This includes rebuttal experts.
No undisclosed expert rebuttal opinion testimony will be allowed at trial.
Id. (emphasis in original).
Other than previously identifying Michael Larson as his expert (“as well as his
theories”), Plaintiff never provided formal expert disclosures by the August 1, 2016 deadline.
Opp. to Mot. to Strike, p. 2 (Docket No. 46). In turn, within their September 6, 2016 Motion for
Partial Summary Judgment, Defendants/Counterclaimants Michael Bibin and Michael J. Bibin
and Associates CPA, P.A. (“Defendants”) “mov[ed] the Court to exclude all expert witnesses to
be disclosed by Plaintiff.” Mot. to Exclude and Mot. for Partial Summ. J., p. 2 (Docket No. 37).
Plaintiff then disclosed Mr. Larson as their sole expert on September 27, 2016, and
included an eight-page report signed by him with 226 pages of attachments. See Pl.’s Expert
Witness Discl. (Docket No. 44). Defendants then moved to specifically strike “Plaintiff’s
disclosure of Expert Witness Michael Larson, all attending documents pertaining thereto, and
exclude his testimony at trial” via the at-issue Motion, arguing that “the disclosure is untimely
and Plaintiff did not seek an extension of time.” Mot. to Strike, p. 2 (Docket No. 39).1

1

The original arguments raised within Defendants’ Motion for Partial Summary
Judgment have therefore since crystallized into the instant Motion and will be resolved here. To
the extent unresolved issues remain moving forward, Judge Lodge will likely incorporate their
discussion into his anticipated consideration of Defendants’ Motion for Partial Summary
Judgment, if necessary.
MEMORANDUM DECISION AND ORDER - 2

DISCUSSION
Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure states in relevant part that a
party must disclose to the other parties the identify of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702 . . . .” Fed. R. Civ. P. 26(a)(2)(A). Parties must
disclose their experts “at the times and in the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). The disclosure must be accompanied by a written report; that report must contain:
“(I) a complete statement of all opinions the witness will express and the basis and reasons for
them; (ii) the data or other information considered by the witness in forming them; (iii) any
exhibits that will be used to summarize or support them; (iv) the witness’s qualifications,
including a list of all publications authored in the previous 10 years; (v) 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
(vi) a statement of the compensation to be paid for the study and testimony in the case.” Fed. R.
Civ. P. 26(a)(2)(B) (I-vi).
“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.’”
Hilborn v. Metro. Grp. Prop. and Cas. Ins. Co., 2014 WL 2506303, *3 (D. Idaho 2014) (quoting
DR Sys., Inc. v. Eastman Kodak Co., 2009 WL 2982821, *3, n.2 (S.D. Cal. 2009)). “If a party
fails to provide information nor identify a witness as required by the [R]ule, 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.” Hilborn, 2014 WL 2506303 at *3 (citing Fed. R. Civ. P.
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).” Hilborn, 2014 WL

MEMORANDUM DECISION AND ORDER - 3

2506303 at *3 (quoting 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 the sanctioning power and a rule
that 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 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 was substantially justified or harmless. See id. at 1106-07 (holding 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)).
Here, it is undisputed that Plaintiff failed to properly disclose his expert, Mr. Larson, by
the August 1, 2016 deadline – that is, though apparently identifying Mr. Larson as his expert
previously, Plaintiff did not submit any expert report from Mr. Larson as of August 1, 2016.
Even so, Plaintiff argues that his neglect in this respect is both substantially justified and
harmless and, thus, Defendants’ efforts to strike Mr. Larson’s disclosure/testimony should be
rejected.
First, Plaintiff appears to claim that his untimely expert disclosure is substantially
justified, owing to “a clerical oversight due to calendaring . . . .” Opp. to Mot. to Strike, p. 3
(Docket No. 46); see also Griggs Aff., ¶ 3 (Docket No. 46, Att. 1) (“Rather than entering August

MEMORANDUM DECISION AND ORDER - 4

1, 2016 (the deadline for expert disclosure in the discovery plan), my office used the deadline for
discovery, September 30, 2016, as the deadline for disclosure of expert reports as well. I do not
know the reason for that as the person who did the calendaring at that time has been gone for
several months.”). There is no question that, with busy and hectic litigation practices, such
things happen on occasion. However, such an omission, without more, cannot constitute
substantial justification for violating an expert disclosure deadline. See, e.g., Baltodano v. WalMart Stores, Inc., 2011 WL 3859724, *2 (D. Nev. 2011) (discussing factors that “may properly
guide a district court in determining whether a violation of a discovery deadline is justified,”
before concluding: “Inadvertent mistakes and unintentional oversights are not substantial
justifications for delay.”) (citing R & R Sails Inc. v. Ins. Co. of State of Penn., 251 F.R.D. 520,
526 (S.D. Cal. 2008)) (emphasis added); Jennings v. Bell Helicopter Textron Inc., 2013 WL
5306638, *2 (S.D. Cal. 2013) (“internal error when . . . dates were not input into counsel’s
calendaring system and were subsequently missed” . . . “does not amount to substantial
justification.”) (internal quotation marks omitted). Inadvertence and inattentiveness may explain
what happened here; however, they do not represent substantial justification for missing a Courtimposed deadline.
This is magnified by the fact that, even after becoming aware of the missed expert
disclosure deadline (at the latest, when Defendants moved for partial summary judgment on
September 6, 2016),2 Plaintiff never moved to amend the Scheduling Order to extend his expert

2

The Court notes that Defendants’ expert disclosure deadline was August 31, 2016 and
Plaintiff’s rebuttal expert disclosure deadline was September 14, 2016. Assuming those
deadlines were calendared correctly (and there is no indication in the record that they were not),
it would follow that Plaintiff’s awareness of the same, coupled with the institutional knowledge
that such deadlines necessarily follow Plaintiff’s expert disclosure deadline (especially after
originally proposing the identical disclosure deadlines in the parties’ stipulated Litigation Plan),
would have prompted Plaintiff to immediately revisit the Scheduling Order to make sense of the
situation and, likewise, immediately take whatever corrective action was necessary.
MEMORANDUM DECISION AND ORDER - 5

disclosure deadline. There is a reason offered for having missed the deadline, but the reason
does not constitute substantial justification for extending the disclosure deadline.
Second, Plaintiff’s argument that “[p]ermitting Plaintiff’s expert to testify will not cause
Defendants any harm whatsoever,” is overstated and inapposite to the issue. Opp. to Mot. to
Strike, p. 2 (Docket No. 46). It is true, as Plaintiff points out, that (1) Mr. Larson’s identity and
“theories” were known to Defendants, with Defendant even deposing Mr. Larson before the
September 30, 2016 discovery deadline; and (2) the scheduled trial (April 25, 2017)3 was still
approximately seven months following Plaintiff’s actual September 24, 2016 expert disclosure.
See generally id. at pp. 2-8. However, the fact that Mr. Larson may have already been deposed
does not ipso facto demonstrate harmlessness. Were that the case, there would be no reason for
expert disclosure deadlines in the first place; further, such a “rule” would implicitly reward (or at
least excuse) a party who misses the deadline for another party’s erstwhile trial preparation. See,
e.g., Columbia Grain, Inc. v. Hinrichs Trading, LLC, 2015 6675538, *3 (D. Idaho 2015) (“But if
adopted, this argument would prevent any diligent party from enforcing court-imposed
deadlines. Forecasting court decisions is notoriously difficult, and a diligent party will typically
take steps to protect itself in case the court does not exclude the testimony. If that diligence
waives a claim of prejudice, deadlines will fade into obscurity.”). Additionally, while having
taken an expert’s deposition is arguably better than not having one at all, such testimony is the
product of an incomplete examination of that expert’s opinions. It is, of course, the expert’s
report that identifies the framework of an expert’s opinions and, correspondingly, the contours of

3

On March 13, 2017, Judge Lodge vacated the trial date, to be reset, if necessary, after
the Court issues a ruling on the pending dispositive motions, including Defendants’ also-pending
Motion for Reconsideration of Order Denying Motion to Dismiss (Docket No. 52). See 3/13/17
DEO (Docket No. 53).
MEMORANDUM DECISION AND ORDER - 6

an expert’s deposition; without the benefit of that report, the testimony elicited therefrom stands
alone, untethered to any substantiation up to that point in time. Simply put, such testimony
cannot be tested in ways that would otherwise, typically and purposefully, be the case. See, e.g.,
Yeti by Molly, 259 F.3d 1101 (citing favorably NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776,
786 (7th Cir. 2000) (“Without even a preliminary or draft supplemental expert witness report
from [the expert], NutraSweet was greatly hampered in its ability to examine him about his
analysis of the site work.”)).4 So, even though Defendants may not have been as prejudiced as
they could have been had they not taken Mr. Larson’s deposition, they are nonetheless
prejudiced. This prejudice cuts against a finding of harmlessness.
Also, by the time Plaintiff finally completed his expert disclosures on September 24,
2016, the deadline for all experts (including Defendants’ expert disclosures and Plaintiff’s own
rebuttal expert disclosures) had passed in the meantime, while crowding up against the
September 30, 2016 discovery deadline (less than a week later)5 and the October 31, 2016 pre-

4

The parties disagree as to whether Mr. Larson was deposed as a fact witness or expert
witness. See Reply in Supp. of Mot. to Strike, p. 4 (Docket No. 51) (“. . ., Mr. Bibin deposed
Mr. Larson on July 29, 2016, but only as a fact witness. Prior to the deposition, Plaintiff had not
disclosed Mr. Larson as a person with knowledge and had given no indication that Mr. Larson
was going to provide expert opinions at trial. . . . Mr. Larson was equivocal about whether he
would be asked to testify, and the opinions he provided at deposition were narrower than and in
some instances differed from those which were in his expert report.”) (internal citations omitted,
emphasis in original).
5

The undersigned is convinced that, as to any extension in the discovery deadline, it was
expressly limited to individuals that did not include Mr. Larson. See 9/14/16 email from Defs.’
counsel to Pl.’s counsel, attached as Ex. 1 to Lyon Aff. (“. . . would you be willing to do the
depositions of Craig, Mr. Bibin, and Cort during the week of October 10? We could agree to
extend the discovery deadline as to those depositions.”). The timing of this agreement makes
this clear – it preceded Plaintiff’s September 24 expert disclosure, followed Defendants’ expert
disclosure, and followed Defendants’ Motion for Partial Summary Judgment.
MEMORANDUM DECISION AND ORDER - 7

trial motions deadline (a month away).6 Therefore, to say that Plaintiff’s late expert disclosures
should be excused because of a later-in-time trial date fails to recognize the lock-step preparation
needed to defend against claims at trial – exactly what the Scheduling Order seeks to accomplish
in this case. See Morse v. SEG U.S. 95, LLC, 2011 WL 781254, *4 (D. Idaho 2011). As this
Court stated in Morse:
As the Ninth Circuit has recognized, courts enter scheduling orders “to permit the
court and the parties to deal with cases in a thorough and orderly manner, and they
must be allowed to enforce them, unless there are good reasons not to.” Therefore,
when a party fails to identify expert witnesses, and provide the disclosures required
by Rule 26(a)(2) in accordance with the court’s scheduling order, “[d]isruption to the
schedule of the court and other parties in that manner is not harmless.”
Id. (quoting Kjaer v. HGN, Inc., 2010 WL 1052211, *3 (D. Nev. 2010) (quoting Wong v.
Regents of the Univ. of Calif., 410 F.3d 1052, 1062 (9th Cir. 2005)); see also Robertson v. Sadjak,
2010 WL 1418393 (D. Idaho 2010) (excluding expert testimony under Rule 37(c) based upon
failure to comply with scheduling order and Rule 26(a)(2)(B), even without pending trial date).
With all this in mind, Plaintiff’s failure to meet his expert disclosure deadline was not
substantially justified and caused harm to Defendants.7
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Defendants/Counterclaimants’
Motion to Strike Disclosures of Expert Witness Michael Larson and Exclude His Testimony at
Trial (Docket No. 39) is GRANTED.

6

Further, Defendants had already moved for partial summary judgment by this time,
arguing, in part, that Plaintiff cannot prove his prima facie case without an expert testifying as to
the appropriate standard of care. See generally Mem. in Supp. of Mot. to Exclude and Mot. for
Partial Summ. J. (Docket No. 37).(Docket No. 37, Att. 1).
7

To the extent Plaintiff’s opposition to Defendants’ Motion to Strike represents an
attempt to amend the Scheduling Order and extend his expert disclosure deadline, there is no
good cause to do so and Plaintiff’s neglect in not moving earlier is not excusable. See Fed. R.
Civ. P. 6(b)(1)(B).
MEMORANDUM DECISION AND ORDER - 8

In light of the above Order, Plaintiff/Counterdefendant’s Motion for Filings Made Under
Seal (Docket No. 43) is arguably moot. However, it is on file and appears to contain sensitive
information that should be sealed/redacted. Accordingly, for the same reasons articulated in
Judge Lodge’s February 24, 2016 Order, the Motion is GRANTED, but only insofar as a
protective order is warranted – to date, the parties have not submitted the requested protective
order regarding the filing of privileged materials in this case by the original March 14, 2016
deadline for doing so (or, at least, no protective order is on file). Therefore, within two weeks of
the entry of this Memorandum Decision and Order, the parties are to submit a joint protective
order to the Court for its consideration that would ostensibly account for the information at-issue
within Plaintiff’s Motion for Filings Made Under Seal (Docket No. 43). Failure to do so may
result in the unsealing of Docket No. 44.
DATED: August 2, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 9