Metts v. Airtran Airways, Inc.
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/22/10. (sat, Chambers)
Metts v. Airtran Airways, Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MICHELLE METTS v. AIRTRAN AIRWAYS, INC. : : : : : MEMORANDUM OPINION Presently pending and ready for review in this negligence case is the motion of Defendant Airtran Airways to preclude plaintiff from offering expert testimony. (Paper 17). The Civil Action No. DKC 10-0466
issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. reasons that follow, Defendant's motion will be denied. I. Background Plaintiff Michelle Metts is a resident of Prince George's County, Maryland. Inc. ("Airtran") (Paper 2 ¶ 1). is a Florida alleges Defendant Airtran Airways, doing business on a set in of For the
corporation that she
earphones while boarding an Airtran plane in Atlanta, Georgia that was bound for Baltimore, Maryland. (Id. at ¶ 6).
Plaintiff allegedly suffered serious injuries as a result of the
fall and brought suit against Defendant for negligence. at ¶¶ 7-9).
Plaintiff initially filed suit in the Circuit Court for Prince George's County, Maryland. (Paper 2). The case was
removed to federal district court on February 26, 2010 (Paper 1), and a scheduling order was issued on March 12, 2010. 9). (Paper
By request of the parties, the discovery deadlines were (Papers 13 and 14). initial Rule Per the amended 26(a)(2) expert
extended in June 2010. scheduling order,
disclosures were due August 11, 2010, Plaintiff's rebuttal Rule 26(a)(2) parties' disclosures were due of September 24, 2010, was and due both on
October 1, 2010. Plaintiff
(Paper 13). to serve any expert disclosures until
September 3, 2010.
(Paper 17, Exhibit A).
that after Plaintiff failed to submit her expert disclosures when due on August 11, counsel contacted Plaintiff's counsel to inquire. Plaintiff's counsel failed to respond to this and a
subsequent email, but finally responded via telephone that he had been busy with other matters and would provide the
disclosures sometime in the next few weeks.
(Paper 17, at 3).
Plaintiff's disclosures provided in early September identified four individuals she intends to call as experts at trial: Dr.
Mark Cohen, her treating physician, Estelle Davis, an expert in 2
Fairchild, an expert in the field of airline cabin procedures, and Richard Edelman, Ph.D., an expert in the field of forensic economics. (Id.). Plaintiff's disclosures contained only a
short paragraph summary of the testimony that each expert would give and did not include full reports. (Id.). On September 10,
2010, Defendant moved to amend the scheduling order to extend the deadline for submission of its expert disclosures in light of Plaintiff's from delayed submission expert (Paper 15) testimony. and to preclude 17).
Plaintiff did not oppose the motion to amend the schedule, but she did file an opposition to Defendant's motion to exclude her expert testimony on September 27, 2010, (and simultaneously
submitted a report from rehabilitation and vocational counseling expert Estelle Davis) and therein requested that she be given an extension until October 29, 2010, to submit the remainder of her expert disclosures. (Paper 19). Defendant submitted a reply to (Paper 21).1
Plaintiff's opposition on October 6, 2010.
Plaintiff submitted a response to Defendant's reply memorandum on October 12, 2010. Under the Local Rules, surreply are not permitted unless otherwise ordered by the Court. Local Rule 105.2(a). Plaintiff did not seek leave of court to file the surreply and does not offer any explanation of why an additional response is required. Accordingly, Plaintiff's surreply will not be considered. 3
Analysis A. Motion to Preclude Expert Testimony
Defendant argues that Plaintiff should be precluded from presenting expert testimony because her disclosures were
untimely and grossly inadequate. points out that in addition to
(Paper 17, at 2). the twenty-seven
Defendant day delay,
Plaintiff's disclosures did not include formal written reports, did not disclose the opinions of the proffered experts, and did not disclose the bases for their opinions. (Id. at 4).
Defendant also highlights Plaintiff's failure to provide all of the required information regarding the experts' training,
experience, and compensation. that the inadequacies of
(Id. at 6). Plaintiff's
Defendant maintains report significantly
impeded its ability to prepare its own reports and argues that if Plaintiff is allowed to provide supplemental information in the future or at trial, Defendant will be prejudiced. In response, Plaintiff argues that because (Id.). the court
granted Defendant's motion for an extension of time to file its expert reports, any prejudice to Defendant by her late
submission has been ameliorated.
(Paper 19 ¶ 3).
Plaintiff argues that her reports were late because of delays getting information that was necessary to complete the reports from both her experts and Defendant, including Defendant's Cabin Cleaning Manual. (Id. at ¶¶ 5-7). 4
Rule 26(a)(2) imposes disclosure requirements
for expert witnesses "retained or specially employed to provide expert testimony in the case." Fed.R.Civ.P. 26(a)(2)(B).
Specifically for such witnesses, the expert disclosure must "be accompanied by a written report prepared and signed by the
witness" which includes: a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed. R. Civ. P. 26(a)(2)(B).2 Rule 37(c)(1) provides that "[a]
party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so
It is the burden of the
The parties agree that Plaintiff's treating physician, Dr. Mark Cohen, should be classified as a hybrid fact/expert witness for whom no formal expert report is required under Local Rule 104.10. 5
party facing sanctions to show that the failure to comply was either substantially justified or harmless. F.3d 593, 602 (4th Cir. 2006). In determining whether the automatic exclusion provisions of Rule 37(c)(1) should be applied to exclude expert testimony, courts consider four factors: (1) the importance of the Carr v. Deeds, 453
excluded testimony; (2) the explanation of the party for its failure potential to comply prejudice with that the required arise disclosure; from (3) the the
testimony; and (4) the availability of a continuance to cure such prejudice. Sullivan v. Glock, Inc., 175 F.R.D. 497, 506-
507 (D.Md. 1997)(citing Trilogy Commc'ns, Inc. v. Times Fiber Commc'ns, Inc., 109 F.3d 739, 744 (Fed.Cir. 1997)). Excluding
expert testimony "is an extreme sanction" and, if the evidence is critical, one "not normally to be imposed absent a showing of willful deception or `flagrant disregard' of the court order by the proponent." Soufflas v. Zimmer, Inc., 474 F.Supp. 2d 737,
745, n. 4 (E.D.Pa. 2007)(quoting Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir.1977), overruled on other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113
(3d Cir.1985));see also Derrickson v. Circuit City Stores, Inc., No. DKC 95-3296, 1999 WL 1456538 (D.Md. Mar. 19,
1999)("exclusion is a harsh sanction").
Factors one, three, and four weigh in Plaintiff's favor. First, the testimony Defendant seeks to exclude is of critical importance Plaintiff standard to Plaintiff's will and be a case. unable breach Without to expert the testimony, requisite for her
likely of care
Plaintiff may also be unable to present a case Second, the potential The court has already
for damages without expert testimony. prejudice to Defendant is minimal.
granted Defendant an extension of its deadline to submit expert reports. (Paper 18). If Plaintiff's complete reports are
submitted by the end of October, Defendant will have more than a month to prepare its own reports and respond to Plaintiff's expert reports. Moreover, as no trial date has been set,
surprise on the eve of trial resulting from Plaintiff's late submission is not a concern. The second factor does for weigh the in favor is to of preclusion. lacking. time was
justification argued that
severely file on
because her vocational counseling and rehabilitation expert "due to her own problems, did not provide her report to Plaintiff's Counsel until September 27, 2010." (Paper 19 ¶ 5). Plaintiff
further maintains that the delay getting this expert's report delayed expert the needed forensic economist's from 7 expert report because counseling that and
Plaintiff does not provide any explanation for the vocational counseling and rehabilitation expert's delay and does not
demonstrate that she worked diligently to obtain the report in accordance with the scheduling deadlines. Plaintiff maintains
that her airline cabin procedure expert's report was delayed because of Defendant's delay in providing requested documents, namely a cabin safety manual, but Plaintiff has not demonstrated that she exercised due diligence in obtaining these materials from Defendant. no explanation (Id. at ¶ 7). for her Moreover, Plaintiff has provided to seek an were extension due. of Nor the has
Plaintiff even attempted to explain or excuse her failure to provide testimony, information or regarding rates the of qualifications, her expert prior as
required by the Federal Rules. While Plaintiff's explanations for her delay are
insubstantial, Defendant's motion to preclude all of Plaintiff's expert testimony will not be granted at this time. Striking
expert testimony is a particularly harsh sanction and in this case almost certainly would be outcome determinative. Still
Plaintiff is reminded that the court deadlines are not mere suggestions or guideposts. Failure to abide by them in the
future will result in more drastic sanctions. 8
Motion to Amend Scheduling Order opposition to Defendant's motion includes a
request that she given until October 29, 2010, to provide the remainder of her expert reports. Although not labeled as such
or properly submitted, the court will consider this as motion to amend the scheduling order. Generally, district courts have broad discretion to manage the timing of discovery. F.2d 679, 682 (4th Cir. Ardrey v. United Parcel Serv., 798 1986), cert. denied, 480 U.S. 934,
Where a party moves to amend a scheduling order after a
deadline has passed, two Federal Rules of Civil Procedure are implicated: 6(b)(1)(B) and 16(b). Fed.R.Civ.P. 6(b)(1)(B)
provides that a court may "extend the time [to file] on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 16(b) governs the
modification of a scheduling order and requires that the moving party demonstrate good cause for a modification. The excusable
neglect standard in Rule 6 is a higher burden to satisfy, and the Fourth Circuit has noted that " `[e]xcusable neglect' is not easily demonstrated, nor was it intended to be." Thompson v.
E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996). In deciding whether neglect is excusable, "the determination is . . . an equitable one, taking account of all relevant
circumstances surrounding the party's omission," including "the 9
danger of prejudice to the [nonmoving party], the length of the delay reason and for its the potential delay, impact including on judicial it proceedings, was within the the
reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395, (1993). As discussed above, although Plaintiff's explanation for her delay is largely unsatisfactory, allowing Plaintiff to
submit expert reports by the end of October will have a limited, if any, prejudicial effect on Defendant and the court.
Accordingly, the court will exercise its discretion and grant Plaintiff's request to extend the deadline for her expert
reports until October 29, 2010. III. Conclusion For the foregoing reasons, Defendant's motion to preclude Plaintiff from offering expert testimony will be denied, and Plaintiff's request for an extension of time to submit its
remaining expert reports will be granted. follow.
A separate Order will
/s/ DEBORAH K. CHASANOW United States District Judge
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