Vincit Company, LLC v. Druivenga
ORDER denying 73 Motion for Extension of Time to Provide Expert Witness Disclosures and granting 63 Motion to Strike Third-Party Plaintiff's Expert Witness. Signed by Chief Magistrate Judge CJ Williams on 09/27/2017. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
INSURANCE CO., et al.,
VINCIT COMPANY, LLC,
d/b/a/ CONTRACT WELDING
d/b/a CONTRACT WELDING
HILLSHIRE BRANDS CO.,
This case is before the Court on third-party defendant Hillshire Brands Co.’s
(“Hillshire”) Motion to Strike Third-Party Plaintiff’s Expert Witness (Doc. 63),1 and on
third-party plaintiff Mark Druivenga d/b/a Contract Welding & Mechanical’s
(“Druivenga”) Motion for Extension of Deadline to Provide Expert Witness Disclosures
Hillshire filed its motion to strike on August 4, 2017, Contract Welding timely
filed a resistance on August 18, 2017, (Doc. 70), and Hillshire timely filed a reply on
August 24, 2017 (Doc. 72). Contract Welding filed its motion for extension of time on
August 24, 2017, and Hillshire timely filed a reply on August 29, 2017 (Doc. 79). This
Court heard oral argument on both motions on September 25, 2017.
For the following reasons, Hillshire’s Motion to Strike Third-Party Plaintiff’s
Expert Witness (Doc. 63) is granted, and Contract Welding’s Motion for Extension of
Deadline to Provide Expert Witness Disclosures is denied (Doc. 73). The factual bases
for the two motions at issue are intertwined and will be treated as such.
FACTUAL AND PROCEDURAL HISTORY
On March 22, 2014, a fire broke out at a Hillshire plant, damaging the facility and
shutting down operations for an extended period of time. Druivenga had been performing
welding work at the plant on the day of the fire, though Druivenga’s role in causing the
fire, if any, is contested. The instant litigation was filed as a result of the fire and
Druivenga ultimately brought a third-party complaint against Hillshire asserting his own
damages as a result of the fire. (Doc. 37).
Hillshire filed its motion to strike Lawrence Harden, CPA as Druivenga’s expert
witness on the issue of damages and, in support, argues that Druivenga has failed to
On September 25, 2017, this Court entered an Order (Doc. 86) reinstating the motion docketed
at Document 63, which had previously been dismissed due to a scrivener’s error on counsel’s
“serve[ ] any report or disclosure that provides Mr. Harden’s opinions or the basis for
those opinions.” (Doc. 63, at 2). Further, Hillshire argues that if Mr. Harden is
permitted to serve as an expert, Hillshire will be prejudiced, as trial is currently scheduled
for November 13, 2017, Hillshire has not had the opportunity to depose Mr. Harden,2
and the report that has been provided to Hillshire is grossly insufficient. The Courtimposed deadline for Druivenga’s expert witness disclosures was March 31, 2017. (Doc.
In response to Hillshire’s motion to strike, Druivenga filed his motion for extension of
time. In support thereof, Druivenga states that on June 6, 2017, Druivenga informed
Hillshire via email that Druivenga intended to present Mr. Harden as his expert witness
on Druivenga’s damages. (Doc. 73, at 2). Druivenga did not provide Mr. Harden’s
expert witness report at the time of this notice and only provided the report days before
the September 25, 2017, hearing, citing “delays occasioned first by Druivenga’s
difficulties in working with his own tax and accounting firm, and then by a very serious
health scare that Druivenga experienced during the summer, requiring hospitalization.”
(Id.). It is apparent that certain information pertaining to Druivenga’s finances would
prove necessary in Mr. Harden’s attempts to calculate Druivenga’s damages. Druivenga
does not present any other reason for the delay in disclosing the full breadth of the
required expert witness information beyond those reasons recounted above.
Federal Rule of Civil Procedure 16 requires the Court to issue a scheduling order
that includes certain deadlines, including the deadlines for completing discovery. The
Rule 16 scheduling order may be modified only for good cause.
FED. R. CIV. P.
16(b)(4); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).
Although Hillshire has not yet had the opportunity to depose Mr. Harden, Druivenga made it
clear, both in his motion for extension of time and during the September 25, 2017 hearing, that
Druivenga “intends to make Harden readily available for deposition.” (Doc. 73, at 2).
Federal Rule of Civil Procedure 26(a)(2)(B) provides that expert witnesses must
provide a written report containing: 1) “a complete statement of all opinions the witness
will express and the basis and reasons for them;” 2) “the facts or data considered by the
witness in forming them;” 3) “any exhibits that will be used to summarize or support
them;” 4) “the witness’s qualifications, including a list of all publications authored in the
previous 10 years;” 5) “a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition;” and 6) “a statement of the
compensation to be paid for the study and testimony in the case.” “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). A late disclosure of an expert opinion can be “equivalent to failure to
disclose.” Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) (“failure
to disclose in a timely manner is equivalent to failure to disclose,” citing Sylla–Sawdon
v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995) (“In prior cases, [the
Eighth Circuit Court of Appeals has] upheld rulings by district courts precluding experts
from testifying when those experts were not timely disclosed pursuant to pretrial orders
and local rules.”)).
When a party fails to provide the information or the identity of an expert witness
in compliance with Rule 26(a), the Court has wide discretion to fashion a remedy or
sanction under Rule 37(c) that is appropriate under the circumstances. These sanctions
can include the exclusion of testimony on undisclosed opinions at trial. See FED. R. CIV.
P. 37(c)(1). These sanctions do not apply, however, if “the failure was substantially
justified or is harmless.” Id. See, e.g., Wegener v. Johnson, 527 F.3d 687, 692 (8th
Cir. 2008) (the district court did not abuse its discretion in excluding expert witness
testimony supplemented fewer than three weeks prior to trial because, in relevant part,
the late disclosure was neither substantially justified nor harmless, and “a continuance
would have postponed a much-delayed trial”); Williams v. TESCO Servs., Inc., 719 F.3d
968, 976 (8th Cir. 2013) (finding no “clear and prejudicial abuse of discretion” in the
district court’s decision to strike an expert’s second report, which was disclosed after the
close of both discovery and the summary judgment record, because that report
“materially alter[ed], [rather than] merely clarif[ied]” the expert’s original report and
deposition testimony). Importantly, “the exclusion of evidence is a harsh penalty [for
non-compliance with discovery disclosure deadlines] and should be used sparingly.”
Wegener, 527 F.3d at 692. But see Sylla-Sawdon, 47 F.3d at 285 (holding that a trial
court has great discretion in determining whether to exclude expert testimony that is not
disclosed in compliance with the Court’s scheduling order).
Modification of Scheduling Order
In order for the Court to modify its scheduling order pursuant to Druivenga’s
request, Druivenga must show good cause for the modification. Druivenga acknowledges
that his disclosure of Mr. Harden as an expert and the subsequent required disclosures
were untimely and that Mr. Harden should have been disclosed by the March 31, 2017,
disclosure deadline. Druivenga goes on to explain, in very general terms, that Mr.
Harden’s report was not provided immediately after the June 6, 2017, email notice of
Mr. Harden as an expert for a variety of reasons. The primary reasons asserted are that
Druivenga was unable to obtain necessary financial records from his own tax and
accounting firm and that Druivenga subsequently suffered an illness requiring
However, Druivenga offers no explanation as to why his initial
disclosure of Mr. Harden as an expert was more than two months late.
There seems to be no reason at all why Druivenga was unable to timely make the
necessary disclosures. Indeed, the only explanations Druivenga offers leave more than
a two month gap between the deadline for making such disclosures and the time when
Druivenga purports to have experienced the inability to comply with the scheduling order.
The Court cannot overlook such a lengthy delay when Druivenga does nothing more than
admit it was a mistake not to timely make the disclosures.
Furthermore, the explanations offered by Druivenga leave much to be desired.
They are nearly devoid of detail and only express in general terms that Druivenga suffered
an illness and that he was unable to obtain documents for unknown reasons. It is further
left a mystery whether these documents could have been obtained from some source other
than Druivenga’s tax and accounting firm. Druivenga does not assert that he was not in
possession of these documents and, when given the opportunity to do so, Druivenga failed
to explain why it was necessary to involve the tax and accounting firm.
Finally, even if these excuses are legitimate explanations that have simply been
inadequately explained, the issue remains of why Druivenga did not, at the very least,
disclose Mr. Harden’s identity prior to the March 31, 2017, deadline and why these other
intervening events that began no earlier than June 2017, should be retroactively applied
to explain the nine-week deficiency in making the necessary disclosures. Regardless of
how these explanations are considered, there is simply no way for the Court to find that
good cause existed for the delay. Therefore, Druivenga’s motion for extension of time
Exclusion of Expert
Druivenga does not claim to have complied with Federal Rule of Civil Procedure
26; in fact, Druivenga comes close to admitting that there is no excuse for his
noncompliance. When a party has failed to comply with Rule 26, the Court has wide
discretion in fashioning a remedy, which may include excluding the contested testimony.
FED. R. CIV. P. 37(c)(1). However, where a party can establish that the noncompliance
was substantially justified or harmless, no sanction may apply. Wegener, 527 F.3d at
As previously detailed, Druivenga offered essentially no explanation for the
lengthy delays in providing the required expert witness disclosures. As no adequate
explanation was offered, the Court cannot find that Druivenga’s noncompliance was
The Court turns next to the possibility of whether the noncompliance was
harmless. As with Druivenga’s explanations, Druivenga fails to develop any argument
that the noncompliance was harmless.
Hillshire, in contrast, argues that the
noncompliance was harmful because, if this Court were to permit Mr. Harden to appear
as an expert without rescheduling the trial, Hillshire would be forced to hastily depose
Mr. Harden and develop a rebuttal to Mr. Harden’s opinions. At the time this motion
was heard, trial was less than two months out and Hillshire had only recently received
Mr. Harden’s report, which, Hillshire urges, was woefully insufficient. If the report is
as insufficient as Hillshire alleges, this untimely report would do little to remedy the
extended delay and would be of little use to Hillshire in building a rebuttal to Druivenga’s
case for damages.
Where a report is required from an expert witness, as here, a “deposition may be
conducted only after the report is provided.” FED. R. CIV. P. 26(b)(4)(A). Suffice it to
say that given the circumstances, Hillshire could not have deposed Mr. Harden prior to
the hearing. Again, trial is scheduled for November 13, 2017, which would permit
Hillshire fewer than two months to depose Mr. Harden and prepare a case for damages.
Allowing a party such a short timeframe within which to examine a damages expert and
fully develop a rebuttal argument when the case has been ongoing for some time and the
parties were well aware of the relevant deadlines would certainly result in prejudice to
As an alternative, the Court could continue the trial to provide Hillshire adequate
time to develop the issue of damages in light of Mr. Harden’s report and deposition.
However, the Court is not willing to do this because, as shown above, this is a significant
case of noncompliance. Absent rescheduling trial, the Court is left with no option other
than excluding Mr. Harden’s testimony entirely. Although exclusion of evidence is a
harsh remedy, the Court finds it appropriate here given the entirety of the circumstances.
As such, Hillshire’s motion to exclude is granted.
For the aforementioned reasons, Druivenga’s Motion for Extension of Deadline
to Provide Expert Witness Disclosures (Doc. 73), is hereby denied, and Hillshire’s
Motion to Strike Third-Party Plaintiff’s Expert Witness (Doc. 63) is granted. Lawrence
Harden, CPA is barred from testifying at trial in this action.
IT IS SO ORDERED this 27th day of September, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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