Ahad v. Southern Illinois School of Medicine et al
OPINION: Plaintiff's Motion to Strike Defendants' Exhibit 1 in Opposition to Rule 23 Class Certification - Their Expert's "Rebuttal Report" 76 is DENIED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 03/05/2018. (SKN, ilcd)
Tuesday, 06 March, 2018 11:53:04 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SAJIDA AHAD, MD, on behalf of
herself and all others similarly
BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS UNIVERSITY )
and SIU PHYSICIANS &
SUE E. MYERSCOUGH, U.S. District Judge.
The cause before the Court is Plaintiff’s Motion to Strike
Defendants’ Exhibit I in Opposition to Rule 23 Class Certification –
Their Expert’s “Rebuttal Report” (d/e 76), pursuant to Federal Rule
of Civil Procedure 37. For the reasons stated herein, Plaintiff’s
Motion is DENIED.
Plaintiff Sajida Ahad, M.D. alleges gender-based pay
discrimination on her behalf and a class of female physicians
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employed by Defendants. Plaintiff alleges that Defendants paid
Plaintiff and other female physicians substantially lower
compensation than male physicians for the same or similar work.
See Am. Compl., (d/e 31). Defendants deny these allegations. See
Answer to Am. Compl. (d/e 39). Under the scheduling order,
Plaintiff was to disclose her class or collective action expert
certification reports by March 11, 2017, Defendants were to disclose
class or collective action expert certification reports by May 8, 2017,
and Plaintiff was to disclose any rebuttal class or collective action
expert certification reports by July 14, 2017. See Second Revised
Order Regarding Scheduling (d/e 29). There was no provision
providing a deadline for a rebuttal expert report for Defendant.
Plaintiff’s expert, Dr. D.C. Sharp, submitted his expert report
on March 10, 2017. Defendants’ expert, Dr. Chen Song, filed her
expert report on May 8, 2017. Plaintiff’s expert filed his rebuttal
report on July 14, 2017.
Plaintiff’s objection concerns the Defendants’ “Rebuttal Report”
received by Plaintiff on August 10, 2017 and included as Exhibit I
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in Defendants’ Opposition to Plaintiff’s Motion for Class
Certification (d/e 68-16).1
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 37(c), “[i]f 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.” Fed. R. Civ. P.
37(c). “The purpose of Rule 37(c) is to prevent the practice of
‘sandbagging’ an opposing party with new evidence.” Marvel
Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 727 (S.D.N.Y. 2011)
(internal citations omitted), aff'd in part, vacated in part sub
nom. Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013).
The threshold question in a Motion for Rule 37(c) sanctions,
therefore, is whether a party has failed to provide information or
identify a witness as required by Rule 26(a) or (e).
Federal Rule of Civil Procedure 26(a)(2) governs disclosure of
expert witnesses and states that experts who provide written
A title page was not included in Exhibit I, but the report contains additional
opinions in response to Plaintiff’s expert’s reply report and the parties appear
to agree that it is properly considered a rebuttal report.
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reports must include, among other information, “a complete
statement of all opinions the witnesses will express and the basis
and reasons for them.” Fed. R. Civ. P. 26(a)(2). Rule 26(a)(2)(B)(ii)
requires an expert’s report to disclose “the facts or data considered
by the witness in forming” the opinion, in addition to requiring
specific information to be included with each written report.
Additionally, “[a] party must make these disclosures at the times
and in the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). Absent a court order, “evidence intended solely to
contradict or rebut evidence on the same subject matter identified
by another party under Rule 26(a)(2)(B) or (C)” must be disclosed
within 30 days after the other party’s disclosure. Fed. R. Civ. P.
If the Court determines that a party has failed to provide
information or identify a witness as required by Rule 26(a) or (e),
the exclusion of non-disclosed evidence is “mandatory under Rule
37(c)(1) unless non-disclosure was justified or harmless.” Musser v.
Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.2004). See also
Rossi v. City of Chicago, 790 F.3d 729, 738 (7th Cir. 2015).
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Plaintiff contends that Defendants’ Expert’s Rebuttal Report
must be struck for two reasons. First, Plaintiff argues that because
the Rebuttal Report was not specifically authorized in the
scheduling order, Defendants were required to seek leave of court
before they could serve and rely on it. Defendants argue that
because the scheduling order did not include a deadline for a
rebuttal report for Defendants’ expert, Federal Rule of Civil
Procedure 26(a)(2)(D)(ii) applied and created a 30-day deadline for
Defendants to produce a rebuttal report. Defendants argue that
their report was “intended solely to contradict or rebut evidence”
included in Plaintiff’s expert’s reply report and, therefore, was
timely produced within 30 days of the reply report.
The Court agrees that Rule 26(a)(2)(D)(ii) applies and
Defendants were subject to a 30-day deadline to submit their
rebuttal report, which they met. While it would have been prudent
for Defendants to seek leave of Court to add a deadline for their
expert’s rebuttal report to the scheduling order when it appeared
that a rebuttal report would be necessary, the Court will not
exclude relevant evidence on this basis alone. See Talbert v. City of
Chicago, 236 F.R.D. 415, 419 (N.D. Ill. 2006) (“There is a preference
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in the federal system that trials be determined on the merits [ ] and
not on constructions of the Federal Rules of Civil Procedure that
operate needlessly in a given case to deprive a party of its right to
have a merits-based determination of a claim.”) (Internal citations
omitted). Moreover, Plaintiff has only included a conclusory
statement that this failure caused prejudice. Plaintiff has identified
no prejudice that comes from the Defendants’ failure to seek leave
of the Court to serve and rely on an otherwise relevant report and
the Court does not see how there could be prejudice. The Court,
therefore, will not strike Defendants’ Rebuttal Report on this basis.
Second, Plaintiff argues that Defendants’ report must be
struck because the report was not accompanied by its underlying
data or files as required by Rule 26. However, Defendants state
that the underlying data and files upon which their expert relied for
the rebuttal report were produced earlier in the case by Plaintiff’s
own expert and were in the possession of Plaintiff at the time the
rebuttal report was served on August 8, 2017. Therefore, the
Defendants argue, there has been no discovery violation. Again, the
Court agrees. Defendants were not required to reproduce data
already in possession of the Plaintiff. Upon review of the Rebuttal
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Report, it is clear that Defendants’ expert identified the source of
the data for the analyses and that the data was previously produced
with earlier expert reports. Even if the Court found that Rule
26(a)(2)(B) required Defendants to reproduce the data, a violation of
this requirement would always be harmless where, as here, the data
was in the Plaintiff’s possession and its location was clearly
identified. Therefore, the Court will not strike Defendants’ Rebuttal
Report on this basis either.
For the reasons stated, Plaintiff’s Motion to Strike Defendants’
Exhibit I in Opposition to Rule 23 Class Certification – Their
Expert’s “Rebuttal Report” (d/e 76) is DENIED.
ENTERED: March 5, 2018
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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