GOUDY v. CUMMINGS et al

Filing 340

ORDER granting Defendant' 335 Renewed Motion for Leave to Submit New Expert Report. See Order. Signed by Magistrate Judge Tim A. Baker on 8/5/2019. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WALTER GOUDY,

)
)
Plaintiff,
)
)
v.
)
)
RODNEY J. CUMMINGS in his individual
)
capacities as an Anderson police detective and as a )
Madison County prosecutor,
)
STEVE NAPIER in his individual capacity as an )
Anderson police detective,
)
CITY OF ANDERSON an Indiana municipality, )
THE STATE OF INDIANA (for indemnification )
purposes only),
)
)
Defendants.
)

No. 1:12-cv-00161-SEB-TAB

ORDER ON DEFENDANTS’ RENEWED MOTION
FOR LEAVE TO SUBMIT NEW EXPERT REPORT
Defendants are in a bind. Their expert witness, Dr. John Yuille, died July 23, 2017.
Defendants thereafter identified Dr. Barry Cooper as their replacement expert witness, and on
September 5, 2017, filed a motion for leave to submit this new expert witness report. Shortly
thereafter, on September 29, 2017, the Court granted summary judgment in Defendants’
favor. As a result, the Court denied as moot Defendants’ motion to submit Dr. Cooper’s new
expert witness report. Plaintiff successfully appealed the summary judgment ruling, resulting in
the Seventh Circuit Court of Appeals reversing that ruling and remanding this case for trial. This
prompted Defendants to renew their motion to disclose their new expert witness report. [Filing
No. 335.]
Plaintiff objects to Defendants’ renewed effort to disclose Dr. Cooper as an expert
witness. [Filing No. 338.] The Court held a telephonic status conference on August 2, 2019, and
gave the parties an opportunity to be heard on this motion and objection. As more fully set forth

below, the Court grants Defendants’ renewed motion, but imposes strict deadlines governing the
disclosure of Dr. Cooper’s report, his deposition, and any challenge to his testimony.
Fed. R. Civ. Pro. 37(c)(1) provides in relevant part that a party may supplement its
witness disclosures provided that the failure to timely do so was either justified or
harmless. Finley v. Marathon Oil, 75 F. 3d 1225, 1230 (7th Cir. 1996). Plaintiff faults
Defendants for retaining Dr. Cooper in 2017 but as yet having failed to disclose his expert
witness report. Ordinarily, such a failure would be inexcusable. In the instant case, however, the
intervening summary judgment ruling and appeal understandably contributed to Defendants’
predicament. While it may have been prudent for Defendants to push forward with securing Dr.
Cooper’s report during the pendency of the appeal, it is not particularly surprising that they did
not do so. Having secured a ruling before this Court that may have ended this litigation,
Defendants opted not to spend the time and money needed to secure Dr. Cooper’s report during
the pendency of the appeal. When the appeal was decided against Defendants, they then pushed
forward with obtaining Dr. Cooper’s report, which included filing the renewed motion to submit
his report that now pends before this Court. Thus, while Plaintiff fairly questions Defendants’
approach in this regard, Defendants’ approach was justified.
The closer question is whether Defendants’ conduct is harmless. Plaintiff makes a
convincing argument that the late disclosure of Dr. Cooper’s report imposes a hardship on
Plaintiff, who will want to depose Dr. Cooper, could seek to challenge his testimony, and will
need to be prepared to confront his testimony at trial if Dr. Cooper is not excluded. The demands
imposed on Plaintiff (and Defendants as well) by the rapidly approaching October 15, 2019, final
pretrial conference, the November 12, 2019, trial, and related deadlines will be significant. And
as Plaintiff persuasively points out, Defendants were aware of the need to disclose Dr. Cooper’s

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report when they agreed to the November 12 trial date. As a result, the Court cannot conclude
that Defendants’ conduct is harmless.
Nevertheless, having found Defendants’ conduct was justified, the fact that this conduct
harmed Plaintiff does not preclude Defendants from submitting Dr. Cooper’s report. Rule
37(c)(1) permits Dr. Cooper to testify if Defendants’ conduct was either justified or
harmless. And the harm to Plaintiff is minimized in two significant ways. First, Plaintiff has
known of Defendants’ intention to use Dr. Cooper as a witness and have had his curriculum vitae
and related materials (but not his report), since September 5, 2017. Second, Dr. Cooper’s report
is expected to be substantially similar to Dr. Yuille’s report. So the Court will grant Defendants’
renewed motion to submit Dr. Cooper’s report.
That being said, the Court retains the discretion to impose appropriate pretrial deadlines
and may impose deadlines to minimize the harm to Plaintiff caused by Dr. Cooper’s untimely
report. Even though the harm has been minimized, it still exists. Accordingly, Defendants shall
disclose Dr. Cooper’s report no later than August 26, 2019. Defendants’ request to extend this
deadline to September 9, 2019, is unworkable and is denied. Defendants have contributed
greatly to the bind they find themselves in. They will have to coordinate with Dr. Cooper to
expedite his report. This could require, for example, Defendants to pay Dr. Cooper a premium to
expedite his report. But if Dr. Cooper’s report is not disclosed by August 26, it will not be
allowed. In addition, Dr. Cooper must make himself available for deposition by Plaintiff no later
than September 20. If Dr. Cooper cannot be available by this date, his testimony will not be
allowed. Any motion to limit or preclude Dr. Cooper’s trial testimony shall be filed by October
1, 2019, and any response shall be filed by October 8, 2019. These deadlines will be strictly
enforced in light of the October 15 final pretrial conference.

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For these reasons, and with these limitations, the Court grants Defendants’ renewed
motion to disclose their new expert witness report. [Filing No. 335.]
Date: 8/5/2019

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution:
Uma Bansal
THE BLAKE HOROWITZ LAW FIRM, LTD.
[e-mail]
Betsy M. DeNardi
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Richard Dvorak
DVORAK LAW OFFICES LLC
[e-mail]
Bryan Findley
INDIANA ATTORNEY GENERAL
[e-mail]
Blake Wolfe Horwitz
THE BLAKE HORWITZ LAW FIRM
[e-mail]
Amy Stewart Johnson
FROST BROWN TODD LLC
[e-mail]
Joshua Robert Lowry
INDIANA ATTORNEY GENERAL
[e-mail]
Anthony W. Overholt
FROST BROWN TODD LLC
[e-mail]
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Jeffrey Segall
THE BLAKE HOROWITZ LAW FIRM, LTD.
[e-mail]
Alexander Phillip Will
FROST BROWN TODD LLC
[e-mail]

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