K.E. v. Dover Area School District et al

Filing 132

ORDER granting KE's motion 121 to permit expert testimony by expert disclosed after ddl, permitting Dr. Kim to testify @ trial as to contents of MH eval attached as Exhibit A to KE's instant motion & noting Dover may depose Dr. Kim in advance of trial & may secure & disclose its own responsive expert in acc w/ ddls proscribed in FRCP 26(a)(2)(D)(ii). (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 4/20/18..(ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
K.E.,
Plaintiff
v.
DOVER AREA SCHOOL
DISTRICT, et al.,
Defendants

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CIVIL ACTION NO. 1:15-CV-1634
(Chief Judge Conner)

ORDER
AND NOW, this 20th day of April, 2018, upon consideration of the motion
(Doc. 121) by plaintiff K.E. to permit testimony by expert disclosed after deadline,
wherein K.E. seeks leave to present at trial the testimony of Shari Kim, Ph.D. (“Dr.
Kim”), as an expert witness, and further upon consideration of the brief (Doc. 125)
in opposition filed by defendant Dover Area School District (“Dover”), wherein
Dover urges the court to exclude Dr. Kim’s report and testimony at trial, positing
that late disclosure of this witness violates the court’s scheduling order and will
prejudice Dover, and the court observing that, pursuant to Federal Rule of Civil
Procedure 26(a)(2)(D)(i), absent a stipulation or court order to the contrary, expert
disclosures must be made “at least 90 days before the date set for trial,” FED. R. CIV.
P. 26(a)(2)(D)(i), and that, in this case, the court established by separate order (Doc.
69) an initial expert disclosure deadline of February 23, 2017 and a supplemental
or rebuttal expert report deadline of April 7, 2017, (id.), such that K.E.’s instant
proffer falls within the deadline established by the Federal Rules but beyond the

deadline established by this court, and the court further observing that, pursuant
to Federal Rule of Civil Procedure 37(c)(1), the court must disallow introduction of
evidence that is not timely disclosed “unless the failure was substantially justified or
is harmless,” FED. R. CIV. P. 37(c)(1), but that exclusion of evidence is an “extreme
sanction,” In re TMI Litig., 193 F.3d 613, 721 (3d Cir. 1999) (quoting Dudley v. S.
Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977)), amended, 199 F.3d 158 (3d Cir
2000), and that, in determining whether to exclude the proffered expert, the court
must weigh: first, the potential prejudice to Dover if Dr. Kim is permitted to testify;
second, the ability of K.E. to cure that prejudice; third, the extent to which allowing
Dr. Kim to testify would disrupt the efficiency or commencement of the pending
trial; fourth, any dilatoriness or bad faith on K.E.’s part; and fifth, the importance of
the evidence, see ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012)
(quoting Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d
Cir. 1977), overruled on other grounds by Goodman v. Lukens Steel Co., 777 F.2d
113 (3d Cir. 1985)), and, having considered the parties’ positions as to each of the
above considerations, the court finding first, that the only potential prejudice to
Dover in allowing Dr. Kim to testify is that Dover may wish to depose Dr. Kim
or to secure a responsive expert of its own; second, that the nearly three-month
period remaining before trial is ample time to cure that ostensible prejudice; third,
that because of the ample time remaining before trial, allowing Dr. Kim to testify
will not disrupt the current trial schedule; fourth, that the late disclosure was not

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the result of dilatoriness or bad faith on K.E.’s part; and fifth, that the evidence
speaks to the impact of the collective defendants’ alleged conduct on K.E. and thus
is directly relevant to the issue of damages sub judice, and, for all of these reasons,
the court concluding that the interests of justice support allowing K.E. to introduce
Dr. Kim’s report and testimony at trial, it is hereby ORDERED that:
1.

K.E.’s motion (Doc. 121) to permit expert testimony by expert disclosed
after deadline is GRANTED.

2.

Dr. Kim shall be permitted to testify at trial as to the contents of
the mental health evaluation attached as Exhibit A to K.E.’s instant
motion.

3.

Dover may depose Dr. Kim in advance of trial and may, if it so chooses,
secure and disclose its own responsive expert in accordance with the
deadlines proscribed in Federal Rule of Civil Procedure 26(a)(2)(D)(ii).

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania