Wethington et al v. Swainson

Filing 48

ORDER granting 28 Motion to Strike Defendant's Expert Witnesses. Signed by Honorable Timothy D. DeGiusti on 1/22/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HOLLY WETHINGTON and
MAKENZIE WETHINGTON,
Plaintiffs,
v.
ROBERT SWAINSON, d/b/a
PEGASUS AIRSPORTS CENTER,
Defendant.

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Case No. CIV-14-899-D

ORDER
Plaintiff requests that the Court enter an order striking Defendant’s expert
witnesses, Andy Beck and Willard Stokes, because Defendant failed to provide expert
reports as required by Fed. R. Civ. P. 26(a)(2)(B), and the deadline for designating
expert witnesses has expired [Doc. No. 28]. Defendant has not filed a response and the
matter is now deemed at issue.
Defendant’s Expert Witness List [Doc. No. 26] identifies two proposed expert
witnesses, Andy Beck and Willard Stokes, to which Defendant appends their resumes.
No other information about these individuals is provided. A party’s designation of
expert witnesses who are either retained or specially employed is governed by Rule
26, regarding which it has been stated:

Rule 26 imposes specific disclosure requirements upon any witness
“who is retained or specially employed to provide expert testimony in
the case or whose duties as an employee of the party regularly involve
giving expert testimony.” Fed. R. Civ. Proc. 26(a)(2)(B). Notice of the
expert witness’ name is not enough. Each witness must provide a written
report containing “a complete statement of all opinions to be expressed
and the basis and reasons therefor,” as well as information about the data
considered, the witness’ qualifications, the compensation earned, and
any other recent cases in which he or she offered testimony. Id. Any
party that “without substantial justification” fails to disclose this
information is not permitted to use the witness as evidence at trial
“unless such failure is harmless.” Fed. R. Civ. Proc. 37(c)(1). The district
court may impose other appropriate sanctions in addition to or in lieu of
the evidentiary exclusion. Id.
Prieto v. Malgor, 361 F.3d 1313, 1317-18 (11th Cir. 2004). As to non-retained
experts, Rule 26(a)(2)(C) provides such witnesses must provide disclosures, which
must include the subject matter on which the witness is expected to present evidence.
The disclosure must also state a summary of the facts and opinions to which the
witness is expected to testify. Ingram v. Novartis Pharmaceuticals Corp., 282 F.R.D.
563, 565 (W.D. Okla. 2012).
The Court finds Plaintiff’s motion should be granted, as Defendant has
provided neither a report nor disclosure from the aforementioned experts, has made
no attempt to remedy the defect, and has not offered any explanation for such failure
or why he should be excused from doing so. The Court is mindful of Defendant’s pro
se status; however, this does not excuse him from complying with the Federal Rules

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of Civil Procedure. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994) (“This
court has repeatedly insisted that pro se parties ‘follow the same rules of procedure
that govern other litigants.’”) (citations omitted). It would be unfair to Plaintiff for the
Court to excuse Defendant from any compliance with the rules and standards that
apply to all other parties, especially considering the state of the record before the
Court in considering Plaintiff’s motion.
Accordingly, Plaintiff’s Motion to Strike Defendant’s Expert Designation [Doc.
No. 28] is GRANTED.
IT IS SO ORDERED this 22nd day of January, 2016.

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