EEOC

Filing 300

ORDER denying 260 Motion to Strike Expert Witness for Failure to Disclose. Ordered by Magistrate Judge F.A. Gossett. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
V.
JBS USA, LLC,
Defendant.

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8:10CV318

ORDER

This matter is before the Court on the Equal Employment Opportunity Commission’s
(the “EEOC”) and Plaintiff/Intervenors’ (collectively referred to herein as “Plaintiffs”)
Motion to Strike Expert Witness for Failure to Disclose (filing 260). Plaintiffs request that
the Court strike Defendant’s expert witness, Dr. Mark Grey, arguing that Dr. Grey was not
timely disclosed. For the reasons set forth below, Plaintiffs’ motion will be denied.
BACKGROUND
On April 18, 2011, the Court entered an Initial Progression Order (filing 77) directing
Plaintiffs to identify the expert witnesses that they expected to testify at trial by October 3,
2011. The Order directed Defendant to identify its expert witnesses by November 11, 2011.
(Id.) Plaintiffs’ Fed. R. Civ. P. 26(a)(2) expert reports were due by June 15, 2012, and
Defendant’s expert reports were to be filed by July 15, 2012. (Filing 203.)
In accordance with the Progression Order, on October 3, 2011, Plaintiffs identified
the experts that they expected to call as witnesses at trial. (Filing 273-2.) Plaintiffs identified
Kathleen Moore, a professor of religious studies, as an expert on the subject of Somali
Muslim beliefs and practices. (Id.) Plaintiffs also identified Gwendolyn Combs, to testify
regarding

“employee

and

labor

relations,

human

resources,

[and]

workplace

accommodations,” and Kevin McCullough, to testify on the subject of “meat-packing
industry management and operations, [and] workplace accommodations.” (Id.)

On November 11, 2011, Defendant identified three expert witnesses. (Filing 262-2.)
Defendant did not identify Dr. Grey as an expert. (Id.) In its expert witness disclosure,
Defendant stated, however, that it “reserve[d] the right to identify additional experts in
rebuttal to Plaintiffs’ experts Ms. Gwendolyn Combs and/or Mr. Kevin McCullough once
Plaintiffs provide complete disclosure information for these individuals pursuant to Fed. R.
Civ. P. 26(a)(2)(B).” (Filing 262-2.) Defendant explained that it was “unable to evaluate the
need for, or specific subjects of, rebuttal expert testimony prior to receiving the written
reports and other disclosures required under Rule 26(a)(2)(B).” (Id.)
On June 15, 2012, Plaintiffs provided Defendant with the Rule 26(a)(2) expert witness
reports prepared by Ms. Combs and Mr. McCullough. (Filings 273-4 & 273-5.) According
to Defendant, on June 22, 2012, Defendant retained Dr. Grey to provide rebuttal expert
testimony and, on July 13, 2012, two days before the deadline for Defendant to produce its
expert reports, Defendant provided Plaintiffs with Dr. Grey’s report. (Filings 273-6 & 2737.)
Subsequent to the filing of this motion to strike, Plaintiffs deposed Dr. Grey in Des
Moines, Iowa. (Filing 280.) In the deposition, Dr. Grey testified that he was contacted by
Defendant approximately one year to eighteen months ago regarding the possibility of
serving as an expert witness in this case. (Id.)
ANALYSIS
Pursuant to Fed. R. Civ. P. 37, if a party fails to provide information or identify a
witness as required by Fed. R. Civ. P. 26(a), “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.” Fed. R. Civ. P. 37. Plaintiffs contend that Dr. Grey
should be stricken as an expert witness because Defendant failed to identify Dr. Grey in its
expert witness disclosure which, under the Progression Order, was due on November 11,
2011.
Defendant disputes that its disclosure of Dr. Grey was untimely. Defendant argues
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that on November 11, 2011, it identified the expert witnesses that it expected to testify at
trial, as required by the Progression Order. Defendant asserts that it was not until it received
Plaintiffs’ expert reports on June 15, 2012, that it realized the need for Dr. Grey’s testimony.
Defendant contends that upon receipt of Plaintiffs’ expert reports, it became aware that the
nature of Plaintiffs’ experts’ testimony was different than it had anticipated. As a result,
Defendant identified Dr. Grey to rebut the testimony of Plaintiffs’ experts. Defendant points
out that in its initial witness disclosure, it specifically reserved the right to disclose additional
experts, if necessary, upon receipt of Plaintiffs’ expert reports. Defendant also argues that
even if Dr. Grey was disclosed late, the tardy disclosure was both harmless and substantially
justified.
Based on the record presented, the Court declines to strike Dr. Grey as an expert
witness. It does not appear that Plaintiffs have been prejudiced through the timing of Dr.
Grey’s disclosure. Plaintiffs have been aware since November, 2011, that Defendant could
potentially identify rebuttal experts after receiving Plaintiffs’ expert reports. Plaintiffs have
received Rule 26(a)(2) disclosures concerning Dr. Grey and Plaintiffs have already tendered
an expert witness report in rebuttal to Dr. Grey’s expert opinion. (273-8.) Additionally,
Plaintiffs were able to depose Dr. Grey on August 29, 2012 - far in advance of trial. In short,
Defendant’s failure to identify Dr. Grey in its initial expert disclosure was harmless.
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Strike Expert Witness for Failure to
Disclose (filing 260) is denied.
DATED October 3, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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