Beesley et al v. International Paper Company et al

Filing 461

ORDER granting plaintiffs' 453 motion to strike expert report and denying defendants' 459 motion to strike plaintiffs' reply. Signed by Chief Judge David R. Herndon on 1/23/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAT BEESLEY, et al.,
Plaintiffs,
v.
INTERNATIONAL PAPER COMPANY, et al.,
Defendants.

No. 06-703-DRH

ORDER
HERNDON, Chief Judge:
This case had more than its fair share of discovery disputes. The current one
involves the use of an expert report in support of defendants’ motion for partial
summary judgment (Doc. 447). Specifically, plaintiffs filed a motion to strike Erik
Sirri’s expert report from the summary judgment record (Doc. 453), but not from the
record with regard to the class certification issue. In essence, plaintiffs contend that
by not disclosing Erik Sirri as an expert by the original expert disclosure deadline
in August 2008, defendants should be precluded from using Sirri as an expert in
support of the merits of their position because Sirri was disclosed solely as an expert
for use on the class certification issue in August 2011 after the Court reopended
discovery on that issue (Doc. 453-1). The Court agrees.
I. Background
Defendants were originally scheduled to disclose their experts and produce

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their reports by August 1, 2008. Defendants then asked the Court for permission to
disclose their expert witnesses after plaintiffs had made their disclosures. The Court
granted that request, allowing defendants until August 22, 2008, to disclose their
expert witnesses and produce their reports. Any supplemental reports were to be
served by September 2, 2008, but the parties later agreed they would “exchange
supplemental expert reports by September 16, 2008.”
On August 22, 2008, defendants submitted four expert reports, three relating
to the merits of the case and one related only to the class-certification issues. Sirri’s
report was not disclosed at this time. Defendants filed their supplemental expert
reports, which plaintiffs sought to have struck because they contained opinions
which could and should have been included in the original reports.

Finding

plaintiffs’ allegations to be true, but nonetheless giving defendants the benefit of the
doubt, the Court chose not to strike defendants’ supplemental reports but extended
the expert witness discovery deadline only, until January 6, 2009.

All other

discovery closed December 15, 2008.
Following this, the case was stayed pending the resolution of defendants’
appeal of the Court’s class certification order. On February 15, 2011, the Seventh
Circuit entered its mandate vacating class certification and remanding for further
consideration. On March 4, 2011, the Court held a status conference on how the
case should proceed. The Court heard oral argument from both parties as to
whether additional discovery was needed and took the matter under advisement.
On March 10, 2011, the Court entered an order, noting that it interpreted the
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Seventh Circuit’s statement that a great deal of work was yet to be done “to mean that
the record is devoid of sufficient facts to thoroughly consider the class questions
under consideration in accord with that opinion.” That, along with plaintiffs’
revision and approach to the class certification issue, compelled the Court to find
“that additional discovery is appropriate and warranted to fully develop the class
certification issue.” Accordingly, the Court allowed defendants’ request for additional
discovery, setting forth new deadlines on discovery, supplemental class certification
briefs, if any, expert disclosure, and expert reports. Thereafter, plaintiffs moved to
extend the class certification discovery deadline and briefing schedule, which the
Court granted (Doc. 384), giving the parties until August 22, 2011, to file their expert
disclosures. On that date, defendants served plaintiffs with “defendants’ expert
disclosures with respect to plaintiffs’ amended motion for class certification,”
disclosing David J. Ross and Sirri as experts. (Doc.453-1).
On December 12, 2011, defendants filed their motion for partial summary
judgment (Doc. 447) along with their memorandum in support thereof (Doc. 448),
attaching Sirri’s report in support of its motion. On January 6, 2012, plaintiffs filed
a motion to strike expert report of Erik Sirri from summary judgment record and to
shorten response deadline (Doc. 453), contending that the report should be excluded
because defendants never identified Sirri as a merits expert by the August 2008
deadline. Because plaintiffs’ summary judgment opposition is due by February 6,
2012, plaintiffs requested that the Court order defendants to file any response to its
motion by January 13, 2012. On January 9, 2012, the Court granted that request,
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and on January 13, 2012, defendants filed its response to the motion to strike (Doc.
457), arguing that plaintiffs’ motion was “frivolous” and “a waste of time” and asking
the Court to “sanction, or at least admonish, [p]laintiffs’ counsel for wasting the
Court’s and the [d]efendants’ time on this frivolous [m]otion and for the false fire drill
created by [p]laintiffs’ frivolous attempt to shorten [d]efendants’ response time.” As
to the merits of the dispute, defendants contend that the Court “must consider the
entire record, drawing reasonable inferences and resolving factual disputes in favor
of the non-movant” when considering a motion for summary judgment. On January
16, 2012, plaintiffs filed a reply to that response, contending that “only evidence that
party could use at trial is admissible on summary judgment.”

The next day

defendants filed a motion to strike that reply (Doc. 459), contending that plaintiffs’
reply did not meet the “exceptional circumstances” requirement as required by the
local rules and that plaintiffs’ “passing reference to ‘sanctions’ as justification for
their [r]eply is as groundless as their original [m]otion.” Plaintiffs responded (Doc.
460), contending that “[r]egardless of whether [d]efendnats’ request [for sanctions]
was a ‘motion,’ or merely a request that the Court act sua sponte, it is fundamental
that a sanctions determination required an opportunity to be heard.”
As to defendants’ motion to strike plaintiffs’ reply (Doc. 459), that motion is
denied. Given defendants response, arguing that the motion was “frivolous” and “a
waste of time” and asking for sanctions, a reply was needed by the Court. See, e.g.,
Jolly Group, Ltd. v. Medline Indus., Inc., 435 F.3d 717, 720 (7th Cir. 2006) (finding
that a district court may impose sanctions sua sponte as long as it provides that
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attorney with notice regarding the sanctionable conduct and an opportunity to be
heard).
II. Analysis
Discovery is an area over which the district court has great authority and
discretion. Adams v. Ameritech Servs., Inc., 231 F.3d 414, 432 (7th Cir. 2000).
Federal Rule of Civil Procedure 26(a)(2)(A) provides that “[i]n addition to the
disclosures required by Rule 26(a)(1), a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” FED. R. CIV. P. 26(a)(2)(A). “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). Federal Rule of Civil Procedure 37(c)(1) provides that "[i]f a party fails
to provide information . . . as required by Rule 26(a) or (e), the party is not allowed
to use that information . . . to supply evidence on a motion, at a hearing, or at a trial,
unless the failure to was substantially justified or is harmless." FED. R. CIV. P.
37(c)(1). “The exclusion of non-disclosed evidence is automatic and 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) (citing Finley v. Marathon
Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)). In determining whether a sanction is
appropriate the Court may consider the party’s conduct not in isolation but in light
of “the entire procedural history of the case.” E360 Insight, Inc. v. Spamhaus
Project, 658 F.3d 637, 643 (7th Cir. 2011) (quoting Long v. Steepro, 213 F.3d 983,
986 (7th Cir. 2000)).
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Here, the Court finds that Sirri’s report must be stricken from the summary
judgment record. The Court reopened discovery in this case “to fully develop the
class certification issue.” As Magistrate Judge Williams noted in his memorandum
and order of May 5, 2011, resolving another of the parties’ discovery disputes, “at
this stage in this marathon litigation, the goal is for the parties to discover only
enough facts for the District Court to thoroughly consider the class questions that
remain unresolved–namely, the issues of typicality and adequacy.” The Court did not
reopen discovery for all purposes, but rather limited discovery to the class
certification issue. Thus, defendants disclosure of Sirri as an expert and his report
was as defendants’ disclosures indicated, for purposes of “plaintiffs’ amended motion
for class certification” and was not in compliance with this Court’s court order
regarding expert disclosures. See FED. R. CIV. P. 26(a)(2)(D). Moreover, defendants
fail to explain why its failure to disclose Sirri by the original disclosure deadline was
substantially justified or harmless. See FED. R. CIV. P. 37(c)(1). Therefore, the
exclusion of Sirri’s report is automatic and mandatory. See Musser, 356 F.3d at
758. In fact, defendants posit that “the only passing reference to the Sirri [r]eport in
[d]efendants’ [m]otion that relate to the merits“ can be gleaned from the public
record and that “[d]efendants do not even seek to use Sirri’s opinions in support of
their motion for summary judgment,” effectively conceding that no harm would result
by excluding his report. As to defendants argument that the Court must consider
the entire record when considering a motion for summary judgment, the Court
cannot consider inadmissible expert testimony when ruling on a motion for summary
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judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009)
(finding that a party may not rely on inadmissible expert testimony on motion for
summary judgment); Porter v. Whitehall Labs., Inc., 9 F.3d 607, 612 (7th Cir. 1993)
(noting that expert testimony must be admissible to be considered in a motion for
summary judgment); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 320 (7th Cir. 1996)
(affirming summary judgment when the district court declined to consider expert
testimony that it found inadmissible).
III. Conclusion
For the reasons stated above, plaintiffs’ motion to strike Erik Sirri’s expert
report from the summary judgment record (Doc. 453) is granted and defendants’
motion to strike reply brief in support of plaintiffs’ motion to strike expert report
(Doc. 459) is denied.
IT IS SO ORDERED.
Signed this 23rd day of January, 2012.

David R. Herndon
2012.01.23
13:03:11 -06'00'
Chief Judge
United States District Court

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