McNeese Photography LLC et al v. Access Midstream Partners LO et al

Filing 124

ORDER denying 70 Motion in Limine to Preclude Plaintiff From Offering Expert Testimony. Signed by Honorable Timothy D. DeGiusti on 5/20/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MCNEESE PHOTOGRAPHY, L.L.C.,
Plaintiff,
v.
ACCESS MIDSTREAM PARTNERS,
L.P., a Delaware limited partnership,
Defendant.

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Case No. CIV-14-503-D

ORDER
Before the Court is Defendant’s Motion in Limine to Preclude Plaintiff From
Offering Expert Testimony [Doc. No. 70], to which Plaintiff has filed his response in
opposition [Doc. No. 79]. The matter is fully briefed and at issue.
On May 15, 2015, a Revised Scheduling Order (“Order”) was entered in the
present case [Doc. No. 36]. The portion of the Order relevant to this motion is
paragraph 3(a), which required Plaintiff to “file a final list of expert witnesses(es) in
chief and submit expert reports to defendant by 07/15/2015.” Id. Plaintiff designated
Jeff Sedlik as its expert [Doc. No. 44]; however, as of the date of this order, Plaintiff
has not provided Defendant with an expert report as required by the Order. Defendant
contends that as a result of this omission, Plaintiff should be prohibited from offering
any evidence, testimony, or opinions from Mr. Sedlik or any other expert Plaintiff
may designate in the future.

Rule 37(c) delineates the remedies or sanctions available for failure to disclose
expert reports:
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.
Fed. R. Civ. P. 37(c)(1). The Court may also impose other sanctions, including fee
shifting, informing the jury of the party’s failure to disclose, striking pleadings, or
even dismissing the action. Fed. R. Civ. P. 37(c)(1)(A)-(C). The non-moving party has
the burden of showing that it was substantially justified in failing to comply with Rule
26(a) and that such failure was harmless. Murphy v. Spring, 58 F. Supp. 3d 1241,
1274 (N.D. Okla. 2014).
The determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court. Jacobsen v. Deseret Book Co.,
287 F.3d 936, 952 (10th Cir. 2002); Woodworker’s Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). “A district court need not make explicit
findings concerning the existence of a substantial justification or the harmlessness of
a failure to disclose.” Id. (citing United States v. $9,041,598.68, 163 F.3d 238, 252
(5th Cir.1998)). However, the Tenth Circuit has enumerated four factors a court
should use to guide its discretion in determining whether a Rule 26(a) violation is

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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. Id. In analyzing these factors, the Court notes the
Tenth Circuit has stated that “the decision to exclude evidence is a drastic sanction.”
Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir.1997).
The Court finds an application of the foregoing factors militates against
granting Defendant’s motion. As justification for its noncompliance, Plaintiff
contends Defendant has repeatedly refused to comply with its discovery requests for
essential materials needed to complete the report. Plaintiff notes it has filed a second
motion to compel that seeks documents necessary for Mr. Sedlik to complete his
analysis and conclusions. Without stating an opinion on the merits of Plaintiff’s
motion to compel, the Court finds Plaintiff’s failure to provide an expert report by the
court-ordered deadline was substantially justified. Plaintiff has acted reasonably in
seeking documents relating to his infringement claim. Although Plaintiff could have
moved to extend the report deadline, the Court will not impose the drastic sanction of
excluding its expert merely because Plaintiff failed to seek such an extension.
Moreover, even if the Court were to find that Plaintiff’s delay was not
substantially justified, the Court would still find the delay harmless, as the Court does
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not find Defendant has been unfairly prejudiced by the delay. All remaining
scheduling order deadlines have been stayed pending the Court’s ruling on dispositive
motions. See Order, Nov. 13, 2015 [Doc. No. 108]. Thus, any trial in this matter
would not be affected. Defendant also has the option of moving to reopen discovery
in order to depose Mr. Sedlik after the report has been completed. In sum, the Court
finds the imposition of sanctions is not warranted under the circumstances and
Defendant’s motion in limine should be denied.
Accordingly, Defendant’s Motion in Limine to Preclude Plaintiff From Offering
Expert Testimony [Doc. No. 70] is DENIED as set forth herein.
IT IS SO ORDERED this 20th day of May, 2016.

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