Miller et al v. United States of America et al

Filing 66

ORDER granting 57 Defendant's Motion for Clarification; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MICHAEL B MILLER, et al.
Plaintiffs,
v.

CASE NO. C18-5463RBL
ORDER ON MOTION FOR
CLARIFICATION

UNITED STATES OF AMERICA,
Defendant.

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THIS MATTER is before the Court on Defendant United States’ Motion for Clarification

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[Dkt. # 57] of the Court’s Order [Dkt. # 51] on Plaintiff Miller’s Motion to Exclude undisclosed

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expert testimony [Dkt. # 41]. The underlying motion pre-dated the discovery cut-off, and the

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Court’s Order pre-dated the Order changing the trial date.

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The Government argues, as it did in response to Miller’s motion, that its initial (July 5)

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and rebuttal (August 5) expert disclosures were timely and sufficient. It is concerned that the

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Court’s Order resulted in the exclusion of all its experts, which was not the intent (of either the

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motion of the Order). Rather, Miller sought, and the Court ordered, the exclusion of expert

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opinion testimony that was not timely disclosed.

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ORDER ON MOTION FOR CLARIFICATION - 1

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Miller’s response to the Government’s motion demonstrates (as did his own motion) that

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the Government waited until the very end of discovery to conduct the long-offered Rule 35

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examination of MM. Indeed, the Government did so only after it had deposed at least some of

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Miller’s experts. The initial defense expert reports are, as Miller argues, filled with qualifiers like

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“tentative,” “preliminary,” and “premature,” and each references the need for revision once the

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underlying facts are complete.

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Life-care planner Lewis bases her own “preliminary” opinions on the preliminary, pre-

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examination of other defense experts. She expressly claims that her ultimate opinions will

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depend on the results of the investigations of others. Miller claims Lewis never supplemented her

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opinions, even after MM’s July 9 examination. Another defense expert, Dr. Bouldin, performed

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that examination after his initial report, and then filed a rebuttal report on the last day of

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discovery. Miller claims he thus had no meaningful opportunity to depose Bouldin. The

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Government’s economist, Knowles, was not initially disclosed, and prepared only a “rebuttal”

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report. Miller claims that the need for economist was clear from the start and that Knowles’

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“rebuttal” report is only partially aimed at rebutting Miller’s expert’s testimony. And Miller

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claims that Dr. Thompson’s opinions are similarly tentative, even though she had Miller’s

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experts opinions (and depositions) prior to disclosing her not-yet-fully-formed opinion.

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Miller reiterates authority holding that a party who fails without substantial justification

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to timely disclose its experts’ opinions and the bases for them shall not be permitted use that

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evidence at trial, absent a showing that the failure was substantially justified or was harmless.

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Fed. R. Civ. P. 37(c)(1).

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The Government argues that its initial expert disclosures were timely and sufficient, and
that supplementation after a timely-requested Rule 35 examination is routine and within the

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ORDER ON MOTION FOR CLARIFICATION - 2

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rules. Citing Bridgeham-Morrison v. National General Assurance Co., No. C15-0927RAJ 2016

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WL 231284 (W.D. Wash. Jan 19, 2016). It points out that Miller has deposed1 none of its expert

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and that it remains willing to permit such discovery even now. Miller accurately claims that

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discovery is closed, and he should not be forced to depose an expert after the cutoff to learn

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information that should have already been disclosed. It is not necessarily an answer to a claim

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that one’s expert reports are incomplete to say well, you can just depose him. The two are not

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alternatives.

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Miller’s motion to exclude did not seek the exclusion of specific testimony. The

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Government’s response—that Miller sought an “advisory opinion”—initially struck a chord. But

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the Federal Rules wisely and fairly place on the proponent of expert testimony the obligation to

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disclose her expert, his qualifications, his opinions, and the bases for those opinions. The Rules

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reflect and impose a sense of fairness: if a proponent does not meet her obligation, she must

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demonstrate why the expert evidence she failed to fully disclose should nevertheless be admitted.

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The Court’s Order therefore did not attempt to parse which expert’s disclosure matched what

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opinion he would ultimately offer at trial. Like the Rules and the cases construing them, the

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Court ordered that opinions not timely or properly disclosed would not be admitted at trial,

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absent an affirmative showing that the testimony should nevertheless be admitted.

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The Government’s motion asks the Court to articulate which of its potential witnesses’

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testimony is excluded. The answer is that opinions which were not fairly disclosed will not be

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admitted, absent the requisite showing. The burden of identifying and resolving this issue is not

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on Miller, or the Court.

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As Miller points out, the Government would not allow Miller an eleventh deposition without a court order.

ORDER ON MOTION FOR CLARIFICATION - 3

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It seems plain that Government expert Lewis did not finalize her opinion, whether or not

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Miller chose to depose her. The need for an opinion like economist Knowles’ “rebuttal” opinion

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was obvious from the start, and those portions of his proffered testimony that do not actually

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rebut Miller’s economist expert’s opinion are, at this point, excluded. If the Government intends

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to have Dr. Thompson opine on something new, dramatically different than, or inconsistent with

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her preliminary opinions, it should seek to make the requisite showing prior to trial.

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Dr. Bouldin is a different case, because the Government’s arguments about the need and

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right to supplement after an examination are correct. In light of the continuance, Miller should

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take the opportunity to depose Bouldin, notwithstanding the discovery cutoff. Most of the

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prejudice from deviating from a well-planned trial preparation schedule can be and should be

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avoided.

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The discovery process should be fair, and it should be proportional. No court likes

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discovery disputes, and at least this Court is reluctant to exclude expert or other testimony unless

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its proponent has tried to evade its discovery obligations to obtain an advantage. A case should

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be tried fairly, on its merits. The Court does not punish foot faults and it does not reward sharp

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practice.

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If and to the extent this Order clarifies the Court’s prior one, the Motion for Clarification
is GRANTED.

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IT IS SO ORDERED.

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Dated this 6th day of December, 2019.

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A

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Ronald B. Leighton
United States District Judge

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ORDER ON MOTION FOR CLARIFICATION - 4