Custom Foam Works, Inc. v. Hydrotech Systems, LTD et al
Filing
97
ORDER granting 88 Motion to Strike and advising the parties that the trial date may be briefly delayed. Signed by Judge Michael J. Reagan on 6/1/11. (caa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CUSTOM FOAM WORKS, INC.,
)
)
Plaintiff,
)
)
vs.
) Case No. 09-cv-0710-MJR
)
HYDROTECH SYSTEMS, LTD., and
)
AQUATIC DEVELOPMENT GROUP,
)
)
Defendants,
)
)
HYDROTECH SYSTEMS, LTD.,
)
and AQUATIC DEVELOPMENT GROUP, )
)
Counter-Claimants,
)
)
v.
)
)
CUSTOM FOAM WORKS, INC., and
)
DANE TIPPETT,
)
)
Counterclaim-Defendants. )
MEMORANDUM and ORDER
REAGAN, District Judge:
I.
Introduction
In January 2005, Custom Foam Works, Inc., (CFW) brought a breach of contract and
common law fraud lawsuit against Hydrotech Systems, Ltd., and Aquatic Development
(collectively, Defendants). In the contract, CFW agreed to manufacture and deliver approximately
32,232 square feet of custom foam wall paneling to a project site in Virginia. As consideration for
CFW’s performance, Defendants agreed to pay CFW $508,103.20. CFW claims that Defendants
unilaterally terminated the contract and failed to provide CFW with payment as agreed in the
contract. On June 11, 2010, the Court consolidated into this action the later-filed action, Hydrotech
Systems, Ltd v. Tippett, Case No. 10-cv-0239-MJR.
A Scheduling and Discovery Order proposed by the parties and entered by Magistrate
Judge Proud imposed a July 9, 2010 discovery cut-off and a July 23, 2010 dispositive motion
deadline (see Doc. 18). That order also set the timeline to disclose expert witnesses and written
reports pursuant to Federal Rule of Civil Procedure 26(a)(2). However, during the status conference
on June 23, 2010, the Court found that consolidation of the cases had rendered the Scheduling and
Discovery Order unworkable (Doc. 33). Consequently, the Court rescheduled trial and advanced
the discovery deadline to December 28, 2010, and the dispositive motion deadline to January 7,
2011. Id.
On December 28, 2010, CFW designated its expert witness Nancy Matheny. CFW
asserts that it timely supplemented its disclosure by providing Matheny’s report on January 4, 2011.
On January 28, 2011, CFW supplemented Matheny’s report with pages that it indicated were
inadvertently left out of the report. On February 15, 2011, Defendants filed a motion to strike
CFW’s expert witness (Doc. 69), which the Court denied on March 10 (Doc. 81). On March 22, the
Court also denied Defendants’ motion to reconsider (Docs. 82, 84). On April 29, 2011, Defendants
disclosed rebuttal expert Ryan Clark. (Doc. 88, Exhibit B).
Now before the Court is CFW’s motion to strike Defendants’ untimely expert opinion
witness disclosure and to bar Defendants from presenting expert testimony at trial (Doc 88).
II.
Discussion
A.
Rule 26
Pursuant to Rule 26(a)(2) a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence and must make these disclosures at the times and in
the sequence that the court orders. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(B) requires expert
witness disclosures to include, inter alia, a complete statement of all opinions the witness will
express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(D) also
requires that, absent a court order, a disclosure must be made “(i) at least 90 days before the date set
for trial or for the case to be ready for trial or (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.” Fed. R. Civ. P. 26(a)(2)(D).
As the Court stated in its June 23, 2010, Order (Doc. 33), consolidation of the cases
had rendered the Scheduling Order, then in place, unworkable. As stated before by this Court it
would be against common sense to assume that the Court would advance the discovery and
dispositive motion deadlines more than five months while at the same time requiring the parties to
disclose expert witnesses in accordance with a scheduling order deemed unworkable.
Defendants maintain that in the interests of fairness and substantial justice, they
should be permitted to present testimony from their rebuttal expert at trial. This Court does not
agree. Defendants could have asked for a Rule 16 conference to obtain an amended scheduling and
discovery order after the consolidation of the cases had rendered the prior Scheduling Order
unworkable, but they did not. With neither a stipulation nor a court order in place pursuant to Rule
26(a)(2)(D), the date by which expert rebuttal witnesses had to be disclosed defaulted to 30 days
after the other party’s disclosure. Defendants disclosed their rebuttal witness on April 29, 2011,
more than three-and-one-half months after CFW disclosed its expert and provided her report.
Defendants neither timely disclosed their rebuttal expert, nor sought an extension of
time for disclosing him, nor sought additional time to depose CFW’s expert witness. Even if
Defendants’ deadline were tolled while the Court decided their motion to strike and subsequent
motion to reconsider, Defendants still waited more than 30 days after the Court denied
reconsideration on March 22, 2011, to disclose their expert.
B.
Rule 37
Rule 37 provides in pertinent part that if a party fails to identify a witness as required
by Rule 26(a) or 26(e), the party is not allowed to use that witness to supply evidence at a trial
“unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The
determination of whether a late expert witness disclosure should be allowed is entrusted to the
district court. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The Seventh Circuit
has set forth four factors to guide the district court’s analysis: (1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the
likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing
the evidence at an earlier date. Id.
Here, it is clear that Defendants’ disclosure of a rebuttal witness has surprised and
prejudiced CFW. Defendants knew of CFW’s expert witness and report on January 4, 2011, and
deposed Matheny on March 23, 2011. Defendants had ample opportunity for review and to obtain
a rebuttal expert. Because Defendants’ expert witness disclosure occurred just over one month prior
to trial, CFW has no meaningful opportunity to review the report, consult with its own expert
regarding the validity of the rebuttal expert’s report, depose Defendants’ expert and perhaps retain
a sur-rebuttal expert. The only possible cure for the prejudice is a continuance of trial, which is
disruptive and unacceptable to the Court since trial is scheduled to commence within two weeks.
Concerning the question of bad faith, Defendants were well able to review CFW’s
expert witness report in January, to seek an extension of time if needed or to timely disclose a
rebuttal witness. Instead, Defendants submit that they relied on a side agreement that allowed them
to call a rebuttal witness, apparently in close proximity to trial. While side agreements may serve
the parties involved, the Court had no hand in creating the agreement and, accordingly, has no hand
in enforcing it.
In summary, as numerous courts have found, deadlines have meaning and consequences.
Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996) (noting the district court’s
adherence to “sound policy” in stating, “If the court allows litigants to continually ignore deadlines
and seek neverending extensions without consequence, soon the court's scheduling orders would
become meaningless.”); Parker v. Freightliner Corp., 940 F.2d 1019, 1024 (7th Cir. 1991)
(discussing barring the use of expert testimony and stating that “[j]udges must be able to enforce
deadlines.”); Wilson v. Sundstrand Corp., 2003 WL 259139, at *2 (N.D.Ill. 2003) (“Any purported
problem created by the pendency of expert disclosure ... was well known to the defendant; ... Rule
26(b)(2)(C) is crystal-clear about the expert disclosure schedule that applies if the Court does not
set its own.”); Amari v. C.R. England, Inc., 2010 WL 2943686, at *3 (S.D.Ind. 2010) (“Failing to
provide information before a deadline results in disqualification of the use of that information....
Moreover, ‘exclusion of non-disclosed evidence is automatic and mandatory ... unless nondisclosure was justified or harmless.’”) (internal citation and citation omitted); Finwall v. City of
Chicago, 239 F.R.D. 494, 503 (N.D.Ill. 2006) (“Deadlines such as those envisioned by Rule
26(a)(2)(B) and 37(c)(1) are essential to the maintenance of a smooth and orderly flow of cases”)
(citations omitted).
The Federal Rules provide with exacting specificity the deadline for disclosing a rebuttal
expert. Defendants did not meet that deadline, and, in consequence, the untimely disclosed expert
opinion witness disclosure must be stricken and Defendants barred from presenting expert testimony
at trial.
III.
Conclusion
For the foregoing reasons the Court GRANTS CFW’s May 9, 2011, motion to strike
Defendants’ untimely expert opinion witness disclosure and to bar Defendants from presenting
expert testimony at trial.
As a final matter, the Court ADVISES the parties that the bench trial presently set to
commence at 9:00 a.m., Monday, June 6, 2011, may be delayed by one or two days because a jury
trial may run beyond its anticipated length. The Court will inform the parties of the setting as soon
as the date is certain.
IT IS SO ORDERED.
DATED June 1, 2011
s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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