Tomelleri v. Zazzle,Inc. et al

Filing 256

MEMORANDUM AND ORDER denying 235 Defendant Zazzle Inc.'s Motion for Leave to Supplement Defendant's Expert Disclosures. Signed by Magistrate Judge Teresa J. James on 4/20/2015. (ts)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH R. TOMELLERI,
Plaintiff,
v.
ZAZZLE, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 13-cv-02576-EFM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Zazzle Inc.’s Motion for Leave to
Supplement Defendant’s Expert Disclosures (ECF No. 235), in which Zazzle seeks to
supplement its Rule 26 disclosures for expert witness Brandon Law. Plaintiff opposes the
motion. For the following reasons, the Court denies the motion.
The Court cannot reconcile the parties’ competing versions of the underlying facts
relating to Zazzle’s identification of Mr. Law as an expert witness and service of its Rule
26(a)(2)(B) and/or (C) disclosures. Although Zazzle requests that the Court issue an order
“granting it leave to formally supplement its expert disclosures,”1 Plaintiff contends that the
instant motion is its first notice that Zazzle seeks to identify Mr. Law as a testifying expert
witness. On the record before the Court, it appears that Plaintiff is correct.
According to Zazzle, it served Mr. Law’s first declaration on January 16, 2015 and added
Mr. Law to its Rule 26 disclosures. Plaintiff disagrees, stating that Zazzle did not produce Mr.
Law’s first declaration until February 21, 2015. The docket sheet indicates that on January 13,
2015, Zazzle filed a certificate of service of its Supplemental Rule 26 Disclosures via email on
1

Zazzle’s Motion (ECF No. 235) at 1 (emphasis added).

1

January 9. Although the docket sheet contains no reference to a January 16 certificate of service
via FedEx, Zazzle has provided FedEx receipts verifying delivery of envelopes to Plaintiff’s
counsel on January 20, 2015.2 However, what is markedly absent from Zazzle’s statement that it
“added Mr. Law to its Rule 26 disclosures” is a representation that Zazzle identified Mr. Law as
a witness “retained or specially employed to provide expert testimony in the case.”3 The
Declaration of Brandon Law dated January 16, 2015 does not contain the items required in a
testifying expert’s report.4
Zazzle’s exhibit to the instant motion shows that it identified Mr. Law as a testifying
expert on the day Zazzle filed this motion; the day before, Mr. Law signed a report consistent
with the obligations of a testifying expert.5 Absent other evidence to the contrary, the Court
finds that this was Zazzle’s earliest notice to Plaintiff that it intends for Mr. Law to be a
testifying expert witness.6
The rebuttal expert deadline was December 8, 2014. The Court is aware that Plaintiff did
not file his Amended Complaint (asserting the claim that is the subject of Mr. Law’s testimony)
until December 15, 2014. Plaintiff’s filing was timely, however, as the Court’s December 5
order allowed Plaintiff 10 days to file his Amended Complaint.7 Zazzle did not request an
extension of the December 8 expert rebuttal witness deadline. Zazzle identified Mr. Law as an
2

See ECF No. 240-1 at 4-7.

3

Fed. R. Civ. P. 26(a)(2)(B).

4

See Declaration of Brandon Law (ECF No. 240-1). The Declaration contains no exhibits, does not list Mr. Law’s
qualifications or other cases in which he appeared as an expert witness, and does not include a statement of his
compensation. See Fed. R. Civ. P. 26(a)(2)(B)(iv)-(vi).

5

See Defendant’s Supplemented Disclosure of Expert Witnesses (ECF No. 235-1).

6

As Plaintiff points out, Zazzle did not raise the issue during the Court’s February 25, 2015 telephone Status
Conference.
7

See ECF No. 161.

2

expert witness three months later. Plaintiff claims that Zazzle’s request prejudices him because
if Zazzle is allowed to amend its rebuttal experts to add a new expert witness, Plaintiff would
need additional time to retain a rebuttal expert or supplement the reports of his current expert
witnesses.8 Zazzle replies that Plaintiff will not suffer prejudice because he was aware of “Mr.
Law’s limited testimony” almost two months before the close of discovery, and because Mr.
Law’s second declaration is nearly identical to his first.9 The significant difference is that Zazzle
did not identify Mr. Law as a testifying expert witness when it provided his first declaration.
Zazzle further states that Plaintiff could correct the prejudice because Zazzle has consented to
Plaintiff hiring another expert witness.10 The Court does not find that forcing a party to retain
another expert witness is an appropriate cure for prejudice, particularly when discovery has
closed and the Court has stated that there will be no further amendments to the Scheduling
Order.11
The Court finds that Zazzle has not shown good cause why it should be permitted to
designate Brandon Law as an expert witness and serve his report three months after the
applicable expert witness deadline has passed. Given the factual background, the Court suspects
that as of January 16, 2015, Zazzle did not intend or represent that Mr. Law would be an expert
witness. It is likely a much more recent decision. The Court’s suspicion appears substantiated
by Zazzle’s final fallback argument, which is that Zazzle filed the motion out of an abundance of
caution because it is “debatable” whether Mr. Law’s two declarations would be deemed expert
testimony. If the Court were to deny its motion, Zazzle requests an order that Mr. Law’s
8

See Plaintiff’s Opposition (ECF No. 238) at 2.

9

See Zazzle’s Reply (ECF No. 240) at 3.

10

Id.

11

See Third Amended Scheduling Order (ECF No. 255) at 2.

3

testimony is not expert testimony.12 The undersigned Magistrate Judge will not issue such a
ruling, as it is better left for decision by the presiding District Judge closer to trial.
Accordingly, Defendant Zazzle Inc.’s Motion for Leave to Supplement Defendant’s
Expert Disclosures (ECF No. 235) is DENIED.
IT IS SO ORDERED.
Dated this 20th day of April, 2015 in Kansas City, Kansas.

s/ Teresa J. James
TERESA J. JAMES
UNITED STATES MAGISTRATE JUDGE

12

Id. at 4.

4