Braver et al v. Northstar Alarm Services LLC et al

Filing 234

ORDER denying 230 Defendant NorthStar Alarm Services, LLC's Motion to Strike William E. Patten from Plaintiff's February 5, 2020 Hearing Witness List. Signed by Honorable Stephen P. Friot on 2/3/2020. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT H. BRAVER, for himself
and all individuals similarly situated,
Plaintiff,
-vsNORTHSTAR ALARM SERVICES
LLC, and YODEL TECHNOLOGIES
LLC, et al.,
Defendants.

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Case No. CIV-17-0383-F

ORDER
Before the court is Northstar’s motion to strike plaintiff’s proposed expert
witness, doc. no. 230. The court has carefully reviewed the motion and the
response (doc. no. 232). The motion will be denied for the reasons set forth below.
As an initial matter, the court rejects Northstar’s reliance on the original
scheduling order. That is nonsensical. The matters set for hearing on February 5
have nothing to do with the matters that were being litigated under framework
established by the original scheduling order.
For very good reasons, this matter has progressed to a hearing on Northstar’s
motion for limitation of damages on a compressed schedule. Consequently, there
has not been time for the sequence of events which usually precedes a trial. Aside
from that, it is undeniable that preparation for the hearing on Northstar’s motion
has been affected by the fact that it was necessary for plaintiff to file a motion to
compel discovery, and the document production required by the court’s order on

that motion was not accomplished until January 31, 2020. For that reason, aside
from the other reasons for the compressed schedule, there has not been time for
service of a rebuttal expert report. Based on Mr. Noble’s status as an officer of
Northstar, Northstar would not have been required to provide a Rule 26(a)(2)(B)
expert report. But (assuming, which seems reasonable, that Northstar intends to
elicit Rule 702 testimony from Mr. Noble) the rebuttal report provision of Rule 26
(with its allowance of thirty days) plainly applies to non-retained experts. See, Rule
26(a)(2)(D), referring to “these disclosures” (emphasis added).

So, strictly

speaking, plaintiffs have not violated Rule 26 requirements.
On the subject of substantial justification and harmlessness, the court,
applying the Woodworkers Supply factors, determines that any failure (if there is
such a failure) to comply with Rule 26 is both substantially justified and harmless.
It is substantially justified because of the compressed schedule discussed above and
because of the delay occasioned by plaintiff’s need to file a motion to compel. It
is harmless because Northstar was given an opportunity to cure any prejudice by
taking a deposition of the expert.1
Any such failure is also harmless because, in this nonjury hearing, with
Northstar’s CEO present and testifying first (and by rebuttal, if necessary), he will
be available to assist Northstar’s counsel at all stages of the hearing. Northstar’s
financial statements say what they say, and that cannot be changed by any expert.
As for any possible fact testimony, even though experts are excepted from the
personal knowledge requirement of Rule 602, F.R.Evid., any facts assumed by an
expert will not be taken into account unless supported by other competent evidence.

1

The fact that the name of the expert has changed does not appear to cut for or against Northstar’s
arguments, given the fact that Northstar declined to take a deposition of the expert (by telephone
or otherwise).

2

Aside from all of the foregoing matters, the court will assure Northstar of
one other thing (and this, in the court’s view, is more important than any of the
foregoing): If contrary to the court’s definite expectation, plaintiff’s expert gives
testimony to which Northstar cannot fairly be expected to respond (through its CEO
or otherwise) on February 5, the court will indulge every reasonable
accommodation to afford Northstar an opportunity to respond. The court will
speculate that, within the range of matters which plaintiff’s expert may reasonably
be expected to address on February 5, there will be nothing that will come as a
surprise to Northstar and its counsel.
Northstar’s motion, doc. no. 230, is accordingly DENIED.
IT IS SO ORDERED this 3rd day of February, 2020.

17-0383p063.docx

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