Henson v. Baker School District No. 12 Board of Trustees
Filing
39
ORDER denying 35 Motion to Strike to the extent it seek's the Court's order striking Jakupcak's report and precluding him from offering testimony. By 11/8/2013, Henson must provide BakerSchool District a supplemental report from Ja kupcak that fullycomplies with Rule 26(a)(2)(B); by 12/6/2013 at a time convenient to BakerSchool District, Baker School District may depose Jakupcak; having considered the factors under Rule 37(c)(1)(A), theCourt concludes that no award of fees and costs is appropriate. Signed by Magistrate Carolyn S Ostby on 10/28/2013. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TYLER HENSON,
CV 12-11-BLG-CSO
Plaintiff,
vs.
BAKER SCHOOL DISTRICT NO.
12 BOARD OF TRUSTEES,
ORDER ADDRESSING
DEFENDANT’S MOTION TO
STRIKE PLAINTIFF’S EXPERT
WITNESS
Defendant.
Plaintiff Tyler Henson (“Henson”) filed this action claiming that
Defendant Baker School District No. 12 Board of Trustees (“Baker
School District”) discriminated against him in violation of Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits
discrimination against persons with disabilities. Complaint (ECF 1)1 at
10-11. By Notice filed May 28, 2013, this case was assigned to the
undersigned for all purposes. ECF 22.
Now pending is Baker School District’s “objection” to Henson’s
expert witness disclosure, which the Court treats as a motion for relief
1
A citation to “ECF” refers to documents as they are filed in the
Court’s electronic case filing system.
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under Rule 37(c)(1), Fed. R. Civ. P,2 because it requests that “Mr.
Jakupcak’s expert report be struck and that he be barred from offering
testimony.” ECF 35. Having considered the parties’ arguments, the
Court rules as discussed below.
I.
Procedural Background Relevant to the Instant Motion
On July 12, 2013, the Court issued a Scheduling Order that
vacated all previously-issued scheduling orders and set deadlines,
including the following: (1) simultaneous serving of liability expert
disclosures and serving of Henson’s damages expert disclosure by
August 30, 2013; (2) serving of Baker School District’s damages expert
disclosures by September 20, 2013; (3) filing of “[o]bjections to the
timeliness or sufficiency of a Rule 26(a)(2)(B) report ... within 14 days of
the [preceding] disclosure date[s]”; and (4) a discovery deadline of
November 1, 2013. Scheduling Order (ECF 30) at 2, 4. The Scheduling
Order warned as follows:
An inadequate report or disclosure under Fed. R. Civ. P.
26(a)(2)(B) may result in the exclusion of some or all of the
expert’s opinions at trial even though the expert has been
2
References to rules are to the Federal Rules of Civil Procedure
unless otherwise indicated.
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deposed.
Id. at 4-5 (emphasis omitted).
II.
Parties’ Arguments
Baker School District argues3 that Jakupcak’s expert witness
disclosure statement is not sufficiently detailed. It argues that
Jakupcak failed to: (1) list his education, degrees, or institutions
attended; (2) list courses he taught; (3) state whether he published any
articles; (4) state in what capacities he worked in public schools, how
long he worked, whether he held any state licensure, or how his
experience in public schools is relevant; (5) state his qualifications
respecting Section 504 or list specific programs he developed or
implemented or where; (6) state what articles he reviewed, who wrote
them, or how they informed his opinion in this matter; and (7) identify
his education, training, or experience. Id.
Henson responds by arguing that: (1) when she provided
3
Baker School District did not file an opening brief, presumably
because it did not file its “objection” as a motion. Nevertheless, as
noted above, the Court will treat the objection as a motion and consider
the arguments raised as though they were set forth in a separatelyfiled brief.
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Jakupcak’s report to Baker School District, “counsel inadvertently
neglected to attach his curriculum vita (CV)[,]” Henson’s Resp. Br. (ECF
36) at 2; (2) Henson attached Jakupcak’s report and CV to his response
noting that, “[i]mmediately upon receiving notice of [Baker School
District’s] Objection filed herein, [Henson’s counsel] provided a copy of
Dr. Jakupcak’s CV to opposing counsel[,]” id.; (3) “Jakupcak’s
education, training, experience, publications, and a listing of the
courses he has taught at the University of Montana are all set forth in
his CV[,]” id.; (4) counsel for Baker School District “is very familiar
with Dr. Jakupcak and his qualifications[ ]” because its counsel “crossexamined Dr. Jakupcak in a special education administrative hearing
conducted February 20-21, 2013, In the Matter of A.M., OSPI No. 201201[,]” id.; (5) in that case, Jakupcak’s CV was admitted by the parties’
agreement, id.; (6) during a status conference with this Court on July
12, 2013, Baker School District’s counsel “noted her familiarity with Dr.
Jakupcak when [Henson’s] counsel identified him as [Henson’s] likely
expert[,]” id. at 3; (7) Baker School District’s objection to Jakupcak’s
disclosure “is grounded on a technical oversight that was quickly and
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readily cured immediately upon receiving notice of the oversight ...” and
Baker School District will suffer no prejudice or harm as a result, id.;
and (8) Baker School District does not object to the sufficiency of the
expert report’s detail or basis, only that Jakupcak’s qualifications were
insufficiently detailed, so there is no basis for excluding Jakupcak’s
expert testimony, id.
In reply, Baker School District concedes that Henson provided
Jakupcak’s CV after Henson’s counsel became aware that the CV was
not included with his expert report. Baker School District’s Reply Br.
(ECF 37) at 2. It further concedes that Jakupcak’s CV: (1) lists his
education, degrees, and conferring institutions; (2) lists courses he
taught, his publications, the public schools where in worked, and the
positions he held; and (3) notes his state licensure. Id. But, Baker
School District argues, the CV does not mention his specific education,
training, or “experience with the qualifications, development and
implementation of services and programs under ... Section 504 ...” as
stated in his disclosure. Also, it argues, Jakupcak’s report and CV do
not provide: (1) information about his specific qualifications to render
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an expert opinion regarding Section 504 or state what specific
programs he developed or implemented related thereto, id. at 3; (2)
information about what he reviewed regarding the Rehabilitation Act,
what articles he reviewed or who wrote them, or how the articles
informed his opinion in this matter, id.; or (3) information about his
education, training, or experience regarding Section 504 or a school’s
obligations under it, id. Because of these deficiencies, Baker School
District argues, it is unable to evaluate Jakupcak’s opinion and, thus,
prejudice has not been cured. Id. at 4.
III. Legal Standards
Rule 26(a)(2)(a) requires a party to disclose to all “other parties
the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.” Disclosures are meant to
allow the opposing party a reasonable opportunity to prepare for
effective cross examination of the witness and to arrange for expert
testimony from other witnesses. See Advisory Committee Notes to
1993 Amendments. If a witness is retained for the purpose of providing
expert testimony in the case, the witness’s disclosure “must be
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accompanied by a written report – prepared and signed by the
witness[.]” Rule 26(a)(2)(B). The report 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
(vi)
a statement of the compensation to be paid for the study and
testimony in the case.
Rule 26(a)(2)(B).
“Expert reports eliminate unfair surprise and conserve resources.”
Flonnes v. Property & Cas. Ins. Co. of Hartford, 2013 WL 2285224, *2
(D. Nev., May 22, 2013) (citing Elgas v. Colorado Belle Corp., 179
F.R.D. 296, 299 (D. Nev. 1998)). “The test under Rule 26(a)(2)(B) is
‘whether [the report is] sufficiently complete, detailed and in
compliance with the Rules so that surprise is eliminated, unnecessary
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depositions [ ] avoided, and costs are reduced.” Id. (citing Elgas, 179
F.R.D. at 299).
If a party fails to meet Rule 26(a)’s disclosure requirements, Rule
37(c)(1) forbids the use at trial of the non-disclosed information unless
the failure to disclose was substantially justified or harmless. See Yeti
by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
2001). Thus, Rule 37(c)(1) “gives teeth to the expert disclosure
requirements” of Rule 26(a). Id.; Olson v. Montana Rail Link, Inc., 227
F.R.D. 550, 552 (D. Mont. 2005). The party facing sanctions under Rule
37(c) carries the burden to demonstrate harmlessness. Torres v. City of
Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008) (citing Yeti by Molly,
259 F.3d at 1107)).
IV.
Discussion
As noted, Baker School District agrees that Henson provided it
with Jakupcak’s CV. ECF 37 at 2. While Baker School District agrees
that much of the information it sought has now been provided, it
persists in its position that Jakupcak’s disclosure is missing
information necessary to adequately investigate and understand his
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opinion. Id. at 2-3.
Having carefully reviewed Jakupcak’s report and CV, the Court
concludes that Baker School District’s objection to the sufficiency of his
report is well-taken. Jakupcak states that he has “extensive experience
with the qualifications, development and implementation of services
and programs under the Vocational Rehabilitation Act ... including
Section 504[.]” ECF 36-1 at 1. In his CV, he lists his education,
teaching and other professional positions, courses taught, and
publications. From their number, titles, and brief descriptions, one
might readily infer that he has the “extensive experience” he claims
respecting Section 504 of the Rehabilitation Act. But, as noted above,
Rule 26(a)(2)(B) requires more. Elgas, 179 F.R.D. at 299 (noting the
rule appears “to require exact compliance in all particulars with the
disclosures”) (citing Sullivan v. Glock, Inc., 175 F.R.D. 497, 503 (D. Md.
1997) (citation omitted)). It requires the basis and reasons for every
opinion, including the facts or data considered in forming them. Rule
26(a)(2)(B)(i) and (ii).
Here, Jakupcak does not provide information respecting
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specifically what he reviewed concerning the Rehabilitation Act,
including articles or other material, their sources, or how they
influenced his opinions in this case. In short, neither his report nor his
CV contains information respecting his experience, education, or
training specifically pertinent to Section 504 of the Rehabilitation Act
and his ability to apply its provisions to the circumstances of this case.
U.S. v. GC Quality Lubricants, Inc., 2002 WL 34376587, *2 (M.D. Ga.
2002) (“An expert report must contain some discussion of the reasoning
and thought process that led to the ultimate conclusion.”) (citing Elder
v. Tanner, 205 F.R.D. 190, 193 (E.D. Tex. 2001)). Thus, Jakupcak’s
report does not comply with Rule 26(a)(2)(B).
The Court next must consider whether Henson’s failure to comply
with Rule 26(a)(2)(B) was substantially justified or harmless in
deciding whether to exclude Jakupcak as an expert witness as a
sanction. In performing this analysis, the Court finds the following
instructive:
[I]n exercising its broad discretion to determine whether a
nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion analysis, a
district court should be guided by the following factors: (1)
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the surprise to the party against whom the evidence would
be offered; (2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt
the trial; (4) the importance of the evidence; and (5) the
nondisclosing party’s explanation for its failure to disclose
the evidence.
Frye v. Hanson Aggregates PMA, Inc., 2006 WL 5349211, *3 (S.D.
W.Va. 2006) (quoting Southern States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (citing Rambus,
Inc. v. Infineon Tech. AG, 145 F.Supp.2d 721 (E.D.Va.2001) and Luma
[Corp. v. Stryker Corp.], 226 F.R.D. [536] at 543-44 [S.D. W.Va. 2005)).
Apply the foregoing factors to the circumstances here, the Court
will not exclude Jakupcak as an expert witness. The Court concludes
that less drastic alternatives exist and believes that any prejudice to
Baker School District caused by Jakupcak’s insufficient disclosure can
be cured.
Respecting the first two factors, Henson’s inadvertent failure to
provide Jakupcak’s CV and the insufficiency of the report described
above may have caused surprise and prejudice. But most of the
surprise and prejudice was immediately remedied when Henson
promptly provided the CV upon being alerted to its absence. Any
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remaining prejudice may be remedied, as discussed below, by requiring
a supplemental report and allowing Baker School District a limited
discovery deadline extension to depose Jakupcak.
Respecting the third factor, trial of this matter will not be
disrupted by the Court’s ruling. Trial is set to commence on April 29,
2014 – six months hence. Thus, there is ample time for Baker School
District to evaluate a supplemental report from Jakupcak and to
depose him, if necessary, before trial.
Respecting the fourth factor, the Court is uncertain regarding the
evidence’s relative importance in the context of this case. The record
does not reflect precisely what evidence either party intends to
introduce or whether other experts have been retained to testify. Thus,
this factor weighs neither in favor of nor opposed to the Court’s decision
not to strike Jakupcak’s report or preclude him from testifying.
Respecting the fifth factor, Henson has offered no explanation for
the insufficiency of Jakupcak’s report. Henson merely argued in his
response brief that Baker School District did not challenge the
sufficiency of the report but rather only that it lacked information
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about his qualifications. ECF 36 at 3. But this is not correct. Baker
School District’s motion specifically challenges the report’s sufficiency
by arguing “[a]t no point does Mr. Jakupcak state what his specific
qualifications are, or what specific programs he developed or
implemented or where[ ]” and by noting the report “does not state
which articles he reviewed, who they were authored by or how the
articles informed his opinion in this case.” ECF 35 at 2. While this
factor supports exclusion of Jakupcak’s report and testimony, the
foregoing factors outweigh it in light of the availability of less drastic
measures that will permit resolution of this case on its merits.
From the foregoing discussion, the Court cannot conclude that the
insufficiency of Jakupcak’s report was substantially justified or
harmless. But it does conclude that sanctions less drastic than striking
the report and excluding Jakupcak from testifying are available and
will cure any prejudice to Baker School District.
V.
Conclusion
Based on the foregoing, IT IS ORDERED that Baker School
District’s motion (ECF 35) is DENIED to the extent it seeks the Court’s
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order striking Jakupcak’s report and precluding him from offering
testimony. The Court, however, in exercising its discretion, concludes
that less drastic alternatives are appropriate. Accordingly,
IT IS FURTHER ORDERED that:
1. On or before November 8, 2013, Henson must provide Baker
School District a supplemental report from Jakupcak that fully
complies with Rule 26(a)(2)(B).
2. On or before December 6, 2013, at a time convenient to Baker
School District, Baker School District may depose Jakupcak.
3. Having considered the factors under Rule 37(c)(1)(A), the
Court concludes that no award of fees and costs is appropriate.
DATED this 28th day of October, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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