Weiss v. Campbell

Filing 42

ORDER DENYING 38 Motion ; GRANTING 39 Motion to Exclude. Signed by Magistrate Judge Donald G. Wilkerson on 5/20/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DESIREE WEISS,
Plaintiff,
v.
BENJAMIN R. CAMPBELL,
Defendant.

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Case No. 3:15-cv-542-JPG-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion to Reschedule Trial Date and Scheduling
Order Dates filed by Plaintiff, Desiree Weiss, on April 28, 2016 (Doc. 38) and the Motion to
Exclude Expert Testimony filed by Defendant, Benjamin R. Campbell, on April 30, 2016 (Doc.
39). The Motion to Reschedule is DENIED and the Motion to Exclude is GRANTED.
On December 30, 2015, this Court entered a Scheduling Order setting forth various
deadlines and adopting deadlines agreed upon by the parties (Doc. 29). Plaintiff was to disclose
her expert and expert report by March 7, 2016 and discovery was to be concluded by May 6, 2016.
The parties agreed that Plaintiff’s deadline to disclose experts would be extended to March 28,
2016, with depositions to occur by April 28, 2016.
In her motion, Plaintiff states that she is continuing medical care, that she is not at
maximum medical improvement, and that she requires additional time to disclose her expert and
provide expert reports. Plaintiff’s motion to extend expert discovery was filed after the deadline
imposed by this Court and the agreement of the parties. Federal Rule of Civil Procedure 16(b)(4)
provides that “a schedule may be modified only for good cause and with the judge’s consent.” In
addition, Rule 6(b)(1)(B) provides that if a motion for extension of time is filed after a deadline,
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the party must show “excusable neglect.”
Plaintiff has shown neither. Plaintiff has not explained how the fact that she is still
seeking and receiving medical care would prevent an expert from providing an opinion. Plaintiff
also has not indicated why she waited a full month after the deadline to seek relief. This Court is
entitled to enforce deadlines contained in Court Orders and outlined in the Rules of Civil
Procedure. See Raymond v. Ameritech Corp., 442 F.3d 600, 606-607 (7th Cir. 2006); Spears v.
City of Indianapolis, 74 F.3d 153, 157-158 (7th Cir. 1996). Plaintiff’s lack of diligence does not
excuse the failure to follow those deadlines and does not warrant an extension of those deadlines.
Plaintiff could have provided an expert report and then supplemented it if required.
Federal Rule of Civil Procedure 26(a)(2) provides that expert disclosure must include a
written report “if the witness is one retained or specially employed to provide expert testimony in
the case . . .” The report must contain various items, including a “complete statement of all
opinions the witness will express and the basis and reasons for them.” Id. 26(a)(2)(B)(i). The
parties must also make these disclosures at the time directed by the Court. Id. 26(a)(2)(D). If a
party fails to make such disclosures, such information or witness cannot be used at a hearing or
trial unless “the failure was substantially justified or is harmless.” FED.R.CIV.P. 37(c).
On March 28, 2016, Plaintiff provided Defendant with the name of an expert, Dr. Keith
Wilkey, and indicated that an expert report would be forthcoming. Such a disclosure is wholly
and obviously deficient. Dr. Wilkey is a retained expert and Plaintiff should have provided an
expert report. Plaintiff also has failed to respond to Defendant’s motion, thereby admitting the
merits of the motion as outlined in Local Rule 7.1. Plaintiff has not shown harmlessness or
substantial justification for failure to comply with the Rules.
Therefore, Plaintiffs’ expert disclosure is hereby STRICKEN. As a discovery violation
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sanction and pursuant to Rule 37(c)(1), Plaintiff is not allowed to use expert witness Dr. Keith
Wilkey, or any other expert, to “supply evidence on a motion, at a hearing, or at trial.” Plaintiff
shall proceed in this matter without expert evidence.
IT IS SO ORDERED.
DATED: May 20, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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