Doe et al v. Livonia Public Schools et al

Filing 267

ORDER Granting Defendants' 255 Motion to Strike Plaintiffs' Untimely Disclosed Expert Witness Report. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
M.D. Doe, et al.,
Plaintiffs,
v.

Case No. 13-cv-11687
Judith E. Levy
United States District Judge

Livonia Public Schools, et al.,
Mag. Judge Mona K. Majzoub
Defendants.
________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE
PLAINTIFFS’ UNTIMELY DISCLOSED EXPERT WITNESS
REPORT [255]
Plaintiffs filed this lawsuit on April 15, 2013.

(Dkt. 1.)

On

October 22, 2014, the Honorable Mark A. Goldsmith, who handled the
consolidated discovery for this and two related cases, issued an order
setting January 13, 2015 as the cutoff date for “[p]laintiffs’ experts’
disclosures for all experts whose report or testimony may be used in
opposition to summary judgment or otherwise in support of liability.”
(Dkt. 69 at 3.)
Plaintiffs retained Sharon Hall, Ed.D., as an expert. On January
30, 2015, plaintiffs disclosed a report from Hall that contained three

opinions regarding liability. (See Dkt. 252-32.) Defendants deposed
Hall in March of 2015. (Dkt. 244-41.)
Following two administrative stays and the issuance of Gohl v.
Livonia Pub. Schs. Sch. Dist., 836 F.3d 672 (6th Cir. 2016), which arose
from one of the cases consolidated for discovery with this case, the
Court ordered new summary judgment briefing on February 22, 2017.
(Dkt. 240.)
Defendants filed a joint motion for summary judgment on March
31, 2017. (Dkt. 244.) Plaintiffs responded to that motion for summary
judgment on May 5, 2017.

(Dkt. 252.)

The response included an

“Affidavit and IEP (Individualized Education Program) Report of
Sharon Hall.” (Dkt. 252-33.) The affidavit was dated May 3, 2017. (Id.
at 4.) The report was dated August 24, 2015. (Id. at 5.) The report
analyzes whether the three minor plaintiffs’ IEPs were in compliance
with the federal Individuals with Disabilities Education Act (“IDEA”)
and Michigan state policies, and contains new and different analysis
from that found in Hall’s first expert report.
Defendants state that this second affidavit and report were not
disclosed to them until the response to the motion for summary
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judgment was filed. (See generally Dkt. 255.) Plaintiffs do not dispute
this, but state that Dr. Hall had sent the second report to plaintiffs’
counsel in August 2015, but he did not know that he had received it.
(Dkt. 258-3 at 4.) At some point between March 31, 2017 and May 5,
2017, plaintiffs’ counsel contacted Dr. Hall in connection with plaintiffs’
response to the motion for summary judgment.

(Id.)

During that

contact, Dr. Hall informed plaintiffs’ counsel that she had sent the
second report, and then sent it to plaintiffs’ counsel again.

(Id.)

Plaintiffs’ counsel then included the second report as an exhibit to the
response to the motion for summary judgment. (Dkt. 252-33.)
Fed. R. Civ. P. 26(a)(2)(B) requires that the disclosure of expert
testimony must be accompanied by a written report that must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) 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

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(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 37(c)(1) provides that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
“District courts have broad discretion to exclude untimely
disclosed expert-witness testimony.” Matilla v. S. Ky. Rural Elec. Coop. Corp., 240 F. Appx. 35, 42 (6th Cir. 2007) (citing Pride v. BIC Corp.,
218 F.3d 566, 578-79 (6th Cir. 2000). The sanctions set forth in Rule
37(c)(1) are “automatic and mandatory . . . unless non-disclosure was
justified or harmless.” Dickenson v. Cardiac and Thoracic Surgery of
Eastern Tenn., 386 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v.
Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir. 2004)).
Plaintiffs do not contend that they disclosed the second report to
defendants at any point before May 5, 2017, when they filed their
response to the motion for summary judgment. Plaintiffs make two
arguments regarding the permissibility of the second report. First, they
argue that the second report is actually a “supplement” to the first
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report, permitted under Fed. R. Civ. P. 26(e)(2). Under that rule, “[a]ny
additions or changes to [information included in the report and to
information given during the expert’s deposition] must be disclosed by
the time the party’s pretrial disclosures under Rule 26(a)(3) are due.”
Fed. R. Civ. P. 26(e)(2).
Second, they argue the disclosure of the second report was
substantially justified and harmless to defendants. They argue that
because plaintiffs’ counsel stated at Dr. Hall’s deposition that she might
later be asked to evaluate plaintiffs for purposes of a report on
damages, the creation and submission of a second, undisclosed report in
response to a motion for summary judgment was justified. (Dkt. 258 at
19-20; Dkt. 258-2 at 19.)
The August 24, 2015 report is a second expert report, not a
supplement to the first report disclosed to plaintiffs on January 30,
2015. The first report contains the following three opinions:
1. Sharon Turbiak’s behavior, as outlined in the Schultz
report, including both his narrative and attachments, in
my opinion, can only be properly described as bullying,
abusive, and outside the parameters of any reasonably
accepted teaching techniques, and therefore cannot be
explained as a “professional” difference of opinion of
teaching style or appropriate pedagogical practice.
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2. The students in this classroom, even if they were not the
direct subject of Sharon Turbiak’s physical and emotional
abuse and bullying were, none the less, negatively
impacted by this abusive and bullying atmosphere.
3. There is no reasonable basis to believe that any of the
students in Sharon Turbiak’s classroom during the 20112012 school year were receiving a free, appropriate, public
education (FAPE) as envisioned by IDEA, and Section 504
of the Rehabilitation Act.
(Dkt. 252-32 at 11.)
The second report contains opinions in response to these two
questions:
I.

II.

Are the educational goals and objectives stated for each
student in accordance with the federal IDEA mandates
and Michigan state policies?
Is each student’s progress for each of their IEP goals
and objectives documented in accordance with the
federal IDEA and Michigan state policies?

(Dkt. 252-33 at 5.)
The first report concerns the appropriateness and effect of
defendant Sharon Turbiak’s classroom behavior on plaintiffs’ ability to
receive a free, appropriate public education, as well as the effect of her
behavior on other students.

The second report concerns the legal
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appropriateness of plaintiffs’ IEPs under the IDEA and Michigan state
policies. Plaintiffs argue that the second report supplements the first,
because Dr. Hall’s third opinion in her first report discusses IEPs. (See
Dkt. 252-32 at 34-40.) The second report, notably, does not address
damages the plaintiff may have suffered.
The opinion in the first report concludes that “[i]t is unlikely that
students with significant cognitive disabilities will be able to meet the
goals and objectives in their IEPs if they are not receiving the special
education instruction in their IEP[s].” (Id. at 40.) The second report
does not analyze whether the plaintiffs’ IEPs were met. It analyzes
whether their IEPs as designed complied with relevant federal and
state law and policies. That is a different analysis altogether, and it
cannot be fairly said to “supplement” the first report, because it does
not speak to the validity, support, or basis for any of the opinions in the
first report.
Because the August 24, 2015 expert report is a separate report,
plaintiffs were required to disclose it “at the times and in the sequence
that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). The time to disclose
expert reports used in support of or opposition to a motion for summary
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judgment was on January 13, 2015, or, at the latest, on January 30,
2015, when plaintiffs disclosed the first expert report.
Plaintiffs have not moved to extend the time to file expert reports,
and no such extension has been granted.

Because of that late

disclosure, defendants have had no opportunity to depose Dr. Hall
regarding the contents of the second expert opinion.

Contrary to

plaintiffs’ contention, raising the possibility that Dr. Hall could issue a
second expert report regarding damages did not put defendants on
notice that she would issue a second expert report regarding liability, or
that she had done so nearly two years before the report was first
disclosed in response to defendants’ motion for summary judgment.
Plaintiffs’ failure to disclose the expert report until almost two
years after it was written and almost two and a half years after the
time to disclose expert reports for use in connection with summary
judgment was neither substantially justified nor harmless. Plaintiffs’
stated reason for not disclosing the report is that their counsel’s office
misplaced the report for almost two years, which does not substantially
justify its lack of disclosure.

Defendants also moved for summary

judgment with no knowledge of the second expert report, meaning that
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they were unable to account for or address the contents of that report in
their primary brief.
Plaintiffs also blame the delay in disclosure on the Court’s stay of
this case on August 24, 2015 (Dkt. 223), which was lifted on November
5, 2015 (Dkt. 224), and holding consideration of the pending dispositive
motions in abeyance on April 12, 2016, (Dkt. 233), which was lifted on
December 2, 2016. (Dkt. 236.) Plaintiffs provide no reason why they
could not have disclosed Dr. Hall’s second report to defendants between
November 5, 2015, and April 12, 2016, a period of over six months, or
between December 2, 2016, and March 31, 2017, when defendants’
motion for summary judgment was filed. The Court’s management of
this case does not explain the delay in disclosure of the second expert
report, particularly in light of the fact that the second expert report was
still prepared over seven months after disclosure of such reports was
required.
For the reasons set forth above, it is hereby ordered that:
Defendants’ motion to strike Dr. Hall’s second expert report and
affidavit (Dkt. 255) is GRANTED; and

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Dr. Hall’s second expert report (Dkt. 252-33), pursuant to Fed. R.
Civ. P. 37(c), is STRICKEN from plaintiffs’ response to the motion for
summary judgment, and will not be considered in the Court’s analysis
of defendants’ pending motion for summary judgment. The Court will
determine whether the report may be used at any later stage of this
litigation, including trial, if and when the relevant time arises.
IT IS SO ORDERED.
Dated: January 22, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 22, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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