Geismann V. American Homepatient, Inc

Filing 118

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Strike the Declaration of Robert Biggerstaff (ECF No. 110 ) is GRANTED. Signed by District Judge Ronnie L. White on 06/22/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RADHA GIESMANN, MD, P.C., individually
and on behalf of all other similarlysituated persons,
Plaintiff,
v.
AMERICAN HOMEPATIENT, INC., et al. ,
Defendants.

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No. 4:14CV1538 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant American HomePatient, Inc. ' s Motion to
Strike the Declarations of Robert Biggerstaff and Radha Geismann, M .D. (ECF No . 110). 1 The
motion is fully briefed and ready for disposition.

I. Background
Plaintiff Radha Geismann M .D., P.C. ("Dr. Geismann") filed a class action Complaint,
alleging that Defendant American HomePatient, Inc. ("Defendant") violated the Telephone
Consumer Protection Act, 47 U.S .C. § 227, et seq. ("TCPA"), by sending unsolicited facsimile
advertisements to Dr. Geismann and to members of the putative class. (Compl.

iii! 10-12, ECF

No. 3) Geismann also brings a claim for conversion under Missouri common law. (Compl.

iii!

53-64) Currently pending are a Motion for Class Certification filed by Plaintiff Dr. Geismann
(ECF No . 97) and a Motion to Strike the Declaration of Robert Biggerstaff ("Biggerstaff'),

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In its reply memorandum, Defendant withdraws its Motion to Strike with regard to Dr.
Geismann. (ECF No. 116 p. 1, n. 1) Thus, the Court will address only the Motion to Strike the
Declaration of Robert Biggerstaff.

attached as exhibit 8 to the Memorandum in Support of Motion for Class Certification. (ECF
Nos. 110, 98-9)
Defendant contends that Biggerstaff was not disclosed in Plaintiffs expert disclosures
under Rule 26(a)(2). Defendant argues that the testimony was submitted for the first time with
the motion to certify the class, such that the Declaration should be stricken. In the Biggerstaff
Declaration, he states that he will be able to find fax transmission logs in the SQL database
linked to Defendant's RightFax Server using RightFax Server Version 10 software at some point
in the future . (Biggerstaff Deel.

iii! 10-16, ECF No. 98-9)

Defendant asserts that the Declaration

should be stricken pursuant to Rule 37 (c)( 1) of the Federal Rules of Civil Procedure because
Biggerstaff was disclosed four months after the expert witness disclosure deadline had passed;
the Declaration does not meet Fed. R. Civ. P. 26(a)(2) ' s requirements for expert witness
disclosures; and the Declaration is based on insufficient facts and data in contravention of Rule
702 of the Federal Rules of Evidence.
In response, Plaintiff asserts that the Biggerstaff Declaration was submitted in response to
Defendant's Rule 30(b)(6) witness testimony and does not provide expert testimony. Thus,
Plaintiff argues that the Court should deny Defendant's Motion to Strike the Declaration of
Robert Biggerstaff.

II. Legal Standard
Under Rule 37 of the Federal Rules of Civil Procedure:
If 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. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's
fees, caused by the failure ;
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(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(l). "Rule 37 does not provide for mandatory sanctions, and the district
court may find that a party' s failure to include a witness in the initial Rule 26(a)(l) disclosures
was substantially justified or harmless." Davis v. US. Bancorp, 383 F.3d 761 , 765 (8th Cir.
2004) (citations omitted). "The offending party has the burden to demonstrate that the failure to
disclose was substantially justified or harmless." Seubert v. FFE Transp. Servs. , Inc., No.
4:11CV01651 AGF, 2013 WL 827547, at *1 (E.D. Mo. Mar. 6, 2013) (citation omitted).
Under Rule 37, a district court considers the following factors when determining whether
a failure to disclose under Rule 26(a) may be deemed substantially justified or harmless: "'(1)
the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the
trial; and (4) the moving party's bad faith or willfulness."' Mayhall v. Berman & Rabin, P.A.,
No. 4:13CV0175 AGF, 2014 WL 272348, at* 1 (E.D. Mo. Jan. 24, 2014) (quoting Rodrick v.

Wal- Mart Stores E. , L.P., 666 F.3d 1093, 1096- 97 (8th Cir. 2012) (internal citations and
quotations omitted)). "When a party fails to disclose in compliance with Rule 26(a) 'the district
court has wide discretion to fashion a remedy or sanction as appropriate for the particular
circumstances of the case. "' Id. (quoting Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.
2008)).

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III. Discussion
Defendant seeks to strike the Declaration of Robert Biggerstaff because Plaintiff
submitted the expert Declaration after the Court twice denied motions to extend the deadline for
expert witness disclosures and four months after the expiration date for disclosing expert
witnesses. Defendant also asserts that the disclosure does not comply with Rule 26(a)(2).
Defendant further argues that the inclusion of Biggerstaff s Declaration is prejudicial to
Defendant because Defendant has had no opportunity to cross-examine, issue follow-up
discovery requests, or obtain its own expert to rebut Biggerstaff s opinions. In addition,
Defendant maintains that there is no practical way to cure the prejudice, as Plaintiffs tactics
have made it nearly impossible to allow for the just and expeditious determination in this matter.
Finally, Defendant contends that Plaintiffs repeated disregard for Court orders and Rule 26
requirements demonstrate bad faith and willfulness of Plaintiffs actions.
Plaintiff, on the other hand, asserts that the Biggerstaff Declaration was submitted in
response to Defendant's admission that it did not know whether anyone searched the SQL
database which may contain the fax transmission logs in question. Plaintiff maintains that
Biggerstaff merely avers that he will likely be able to locate the missing fax transmission logs on
the server, as he has done in other cases. Thus, Plaintiff argues that Biggerstaff s declaration is
not expert testimony. Plaintiff further contends that Defendant is not prejudiced because, should
the case proceed as a class action, Plaintiffs will conduct further discovery and move to compel a
forensic image of the server to see if Biggerstaff can locate the fax logs.
The Court agrees with Defendant that Biggerstaff is an expert witness that was not
properly or timely disclosed under Rule 26(a)(2). Biggerstaff acknowledges that he has been
retained as a forensic expert in over 300 cases. (Biggerstaff Decl.

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if 5)

He also avers that he has

experience in the role that computer records play in TCP A cases with regard to analyzing the
records to identify persons to whom faxed advertisements were sent for purposes of class
certification and class notice. (Id.

at~

6) Further, the Declaration is replete with information

regarding Biggerstaff s credentials as an expert in computer forensics and data recovery. He
states that based on his experience with databases and RightFax software, he would likely be
able to recover data from the hard drive(s) where the RightFax data is stored. (Id.

at~

16)

While Plaintiff contends that Biggerstaff s Declaration does not provide expert analysis,
Plaintiff indicates that Biggerstaff has been retained as an expert to perform data recovery of the
facsimiles in question. Indeed, Plaintiff states in her response that, " [s]hould the Court grant
Plaintiffs motion for class certification, Plaintiff intends to pursue discovery regarding
RightFax's SQL database which contains evidence of the sending of fax advertisements at issue,
as part of merits discovery. " (Pl. ' s Response, ECF No. 113 pp. 11-12) The problem with
Plaintiffs assertion, however, is that nothing in the multiple Case Management Orders issued
separates disclosure of expert witnesses into phases of discovery. The Orders state, "Plaintiff
shall disclose all expert witnesses and shall provide the reports required by Rule 26(a)(2),
Fed.R.Civ.P., no later than ... and shall make expert witnesses available for depositions, and
have depositions completed, no later than .... " (ECF Nos. 43, 86, 89 emphasis added). Further,
the most recent Case Management Order states that after ruling on the certification issue, the
Court will hold a conference and set the trial date. (ECF No. 89)
Now, nearly three years after the case was filed, and over four months after the deadline
of expert witness disclosure expired, Plaintiff has failed to designate Biggerstaff as an expert
witness. The Court notes that Plaintiffs counsel frequently uses Biggerstaff as an expert in
TCP A cases related to fax advertisements to support class certification. See, e.g., CE Design

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Ltd. v. Cy's Crabhouse N. , Inc., 259 F.R.D. 135 (N.D. Ill. 2009); Palm Beach Golf Center-Boca,
Inc. v. Sarris, 311 F.R.D. 688 (S.D. Fla. 2015); Exclusively Cats Veterinary Hosp. v. Anesthetic
Vaporizer Servs., Inc., No. 10-10620, 2010 WL 5439737 (E.D. Mich. Dec. 27, 2010); Siding and
Insulation Co. v. Combined Ins. Grp., Ltd. , Inc., No. 1:11 CV 1062, 2012 WL 1425093 (N.D.

Ohio Apr. 24, 2012); Savanna Grp., Inc. v. Trynex, Inc., No. 10-cv-7995 , 2013 WL 66181 (N.D.
Ill. Jan. 4, 2013); Sandusky Wellness Ctr. , LLC v. Wagner Wellness, Inc., No. 3:12 CV 2257,
2014 WL 6750690 (N.D. Ohio Dec. 1, 2014). Further, Plaintiff presents the Declaration as
evidence to support its motion for class certification, alleging that, based upon Biggerstaff s
expertise, he will recover the fax transmissions in question. The Court will therefore analyze
whether Plaintiffs failure to disclose Biggerstaff as an expert was substantially justified or
harmless.

A. Prejudice and the Ability to Cure the Prejudice
Defendant argues that it is prejudiced by Plaintiff's failure to disclose Biggerstaff because
it had no opportunity to cross-examine him or obtain a rebuttal expert to challenge Biggerstaff's
Declaration that he can locate fax transmission logs and demonstrate that the class is
ascertainable. While Plaintiff asserts that Defendant will have the opportunity to depose
Biggerstaff later, nothing in the Case Management Orders indicates that a second round of expert
disclosures would ensue. Were the Court to allow Plaintiff to submit the Declaration, fairness
principles would require the class certification hearing to be postponed in order to allow
Defendant to depose Biggerstaff and obtain its own expert, thus adding to the cost and further
delaying what has become a long-drawn-out TCP A case. The Court therefore finds that allowing
the Declaration would prejudice Defendant, and any ability to cure this prejudice would add time
and expenses to a case that has already been pending nearly three years. See Physicians

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Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C 4978, 2014 WL 6561781 , at *3 (N.D. Ill. Nov.
20, 2014) (finding the admission ofBiggerstaffs Declaration after the close of discovery would
prejudice the defendant, and such prejudice could not be cured).

B. Likelihood of Disruption to the Trial
Although no trial date has been set, the Court finds that admission of Biggerstaff s
Declaration after the deadline for expert witnesses expired would disrupt and delay a possible
trial. The Federal Rules of Civil Procedure are "administered to secure the just, speedy, and
inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1; Physicians

Healthsource, Inc., 2014 WL 6561781, at *3. The Court notes that it has continued to manage
its docket to resolve the case efficiently and expeditiously, despite many attempts by Plaintiff to
further delay the resolution. (ECF No. 94) The Court finds that, although no trial date has been
set, the late disclosure of Biggerstaff would disrupt and delay a future trial. Physicians

Healthsource, Inc., 2014 WL 6561781 , at *3 (" [T]he fact that no trial date has been set does not
render the late disclosures harmless.").

C. Bad Faith or Willfulness
Finally, Defendant argues that Plaintiffs counsel has a pattern of ignoring expert
disclosures and submitting expert testimony after the deadlines have passed. While Plaintiff
characterizes the Declaration as a response to Defendant's Rule 30(b)(6) witness, the Court finds
that Biggerstaff offers his opinion as an expert regarding his knowledge of the RightFax server
and ability to recover the fax transmission logs in support of Plaintiffs Motion for Class
Certification. See Imhojf lnv., LLC v. SamMichaels, Inc., No. 10-10996, 2014 WL 172234, at *4
(E.D. Mich. Jan. 15, 2014) (disagreeing with plaintiffs characterization that the Biggerstaff
Declaration was not untimely because it offered no expert opinion and finding that he offered his

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opinion as an expert). The Court agrees with Defendant that Biggerstaff s Declaration is an
expert disclosure that should have been made under Rule 26(a)(2). While the Court will stop
short of finding that Plaintiffs counsel has demonstrated bad faith, the Court does find the
timing of the Declaration, first presented in its Motion for Class Certification and well after the
deadline for expert disclosures expired, somewhat suspect. As stated above, Defendant is
prejudiced by an inability to cross-examine Biggerstaff or offer a rebuttal expert. Id. (granting
defendant's motion to strike Biggerstaff s declaration where it was disclosed in a motion for
summary judgment reply brief long beyond the expert opinion deadline).
Under Rule 37 of the Federal Rules of Civil Procedure, if a party fails to provide
information or identify a witness as required by Rule 26(a), that party is not allowed to use that
information or witness to supply evidence on a motion, unless the failure is substantially justified
or harmless. Fed. R. Civ. P. 37(c)(l). The analysis above demonstrates that Plaintiff is unable to
demonstrate that the failure was substantially justified or harmless. The Court therefore has
broad discretion to exclude the untimely disclosed declaration of an expert witness and finds that
exclusion is warranted. Physicians Healthsource, Inc., 2014 WL 6561781 , at *4 (concluding the
sanction of exclusion is mandatory because plaintiff failed to establish the violation of Rule 26
was justified or harmless); Imhoff Inv., 2014 WL 172234, at *4. Thus, the Court will grant
Defendant' s Motion to Strike the Declaration of Robert Biggerstaff.

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Accordingly,

Because the Court will exclude Biggerstaff s Declaration for failure to make timely disclosures
under Rule 26(a), it need not address Defendant' s Rule 702 argument. Emerson Elec. Co. v.
Suzhou Cleva Elec. Appliance Co., Ltd. , No. 4:13CV1043SPM, 2015 WL 8770712, at *3 (E.D.
Mo. Dec. 15, 2015).

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IT IS HEREBY ORDERED that Defendant' s Motion to Strike the Declaration of
Robert Biggerstaff (ECF No. 110) is GRANTED.
Dated this 22nd day of June, 2017.

~~Mh

UNITED STATES DISTRICT JUDGE

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