BOWMAN et al v. COLOMER et al
ORDER granting in part and denying in part 149 Motion to Strike. AND NOW, this 29th day of August, 2011, after careful consideration, the Defendants' Motion in Limine (see ECF Docket No. 149 ) is granted in part and denied in part. It is den ied insofar as I will permit the Plaintiffs to use Johnson as an expert provided that the Plaintiffs make Johnson available for a deposition forthwith. The Motion is granted, however, insofar as the scope of Johnson's testimony (and the use of his report), is limited in nature. The Plaintiffs are not permitted to elicit any testimony from Johnson or use his report in any way relating to the minor-Plaintiff's wage losses. Signed by Judge Donetta W. Ambrose on 8/29/11. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MINETTA BOWMAN and DAVID
FEYRER, individually and as the
Parents and guardians of D.F., a minor
Civil Action No. 09-1083
FREMIET COLOMER, FLEITAS
TRANSPORT, INC., TRANS PRO
FREIGHTWAYS, INC., THE SIMPLEX
GROUP, INC., AND ELECTRIC
AMBROSE, Senior District Judge
ORDER OF COURT
The Defendants filed a Motion to Strike Plaintiffs’ Rebuttal Expert, Robert Johnson. See
ECF Docket No. . The Motion is predicated upon the Plaintiffs’ failure to disclose Johnson
as an “expert” in accordance with the dates set forth in this Court’s Order dated October 28,
2010. See ECF Docket No. . That Order required Plaintiffs to designate experts by January
17, 2011. The Plaintiffs disclosed Johnson as a “rebuttal expert” on May 23, 2011. See ECF
Docket No. . In addition to challenging the timeliness of the disclosure, the Defendants also
argue that Johnson’s report is not strictly “rebuttal” in nature.
After careful consideration, I reject the Defendants’ first challenge but find their second
more persuasive. I agree that Johnson was not identified as an expert at the time specified in
my Order of Court. Yet the Case Management Order did not specifically address the issue of
rebuttal experts and the Plaintiffs could not have been expected to disclose a rebuttal expert in
advance of the Defendants’ expert disclosures. The Defendants identified their experts on April
8. 2011. See ECF Docket No. . Federal Rule of Civil Procedure 26(a)(2)(D)(ii) provides
that, unless otherwise specified by court order, rebuttal experts must be disclosed within thirty
days of the other party’s disclosures. Though the Plaintiffs missed this deadline by
approximately two weeks, I find that their misstep was not fatal.
“[U]nder Federal Rule of Civil Procedure 37(c)(1), when ‘a party without substantial
justification fails to disclose information required by Rule 26(a) or 26(e)(1) [that party] shall not,
unless such failure is harmless, be permitted to use as evidence at trial … any witness or
information not so disclosed.’” Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d
Cir. 2000), quoting, Fed. R. Civ. P. 37. To determine whether the exclusion of evidence is
appropriate, the court should consider a number of factors, including: (1) the prejudice or
surprise of the party against whom the evidence is sought to be admitted; (2) the ability of the
party to cure that prejudice; (3) whether permitting the admission of the evidence would disrupt
the orderly and efficient trial of the case; and (4) whether the party acted in bad faith or willful
defiance of a court order. See Nicholas, 227 F.3d at 148, citing, Konstantanopoulos v.
Westvaco Corp. 112 F.3d 710, 719 (3d Cir. 1997).
Here, although the Defendants may have been somewhat surprised by the submission
of a rebuttal expert, they received the report approximately five months prior to trial. Any further
prejudice can be eliminated by permitting them to take Johnson’s deposition. Further, I do not
believe Johnson’s participation will disrupt the orderly and efficient trial of the case. His
testimony is limited to rebuttal only and should not be time consuming. Finally, although the
Plaintiffs were dilatory in identifying Johnson as an expert and producing his report, nothing in
the record suggests that the two week delay was motivated by bad faith. Accordingly, the
Plaintiffs’ failure to identify Johnson as an expert in accordance with the dates set forth in the
Case Management Order does not mandate the exclusion of either his testimony or his report.
As stated above, however, I do agree with the Defendants’ second contention.
Johnson’s report is not strictly a rebuttal report. It interjects new items of damages. Johnson
devotes a significant portion of his report to detailing various “wage loss scenarios” suffered by
the minor Plaintiff. See ECF Docket No. [161-1]. This is the first time, to the Court’s knowledge,
that expert testimony has been offered on the issue of her lost wages. Johnson’s report is
offered as a rebuttal to Brewer’s and Katz’s reports, but neither of those reports contain any
economic forecasts of the minor-Plaintiff’s wage losses. Accordingly, I agree with the
Defendants that any such testimony goes beyond the scope of rebuttal and will not be
AND NOW, this 29th day of August, 2011, after careful consideration, the Defendants’
Motion in Limine (see ECF Docket No. ) is granted in part and denied in part. It is denied
insofar as I will permit the Plaintiffs to use Johnson as an expert provided that the Plaintiffs
make Johnson available for a deposition forthwith. The Motion is granted, however, insofar as
the scope of Johnson’s testimony (and the use of his report), is limited in nature. The Plaintiffs
are not permitted to elicit any testimony from Johnson or use his report in any way relating to
the minor-Plaintiff’s wage losses.
By the Court:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
Senior Judge, U.S. District Court
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