Cole v. Risperdal Manufacturer

Filing 155

ORDER signed by Chief Judge William C Griesbach on 08/02/2017, GRANTING 135 Motion to Strike plaintiffs expert witness disclosures; GRANTING, nunc pro tunc July 10, 2017, 144 Motion for Leave to respond to plaintiffs motion for reconsideration; and GRANTING 146 Motion to Strike plaintiffs third set of expert witness disclosures. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REGINALD S. COLE, JR.,
Plaintiff,
v.

Case No. 15-C-57

JANSSEN PHARMACEUTICALS INC.,
Defendant.

ORDER

On October 26, 2016, U.S. District Court Judge Charles Clevert, the judge assigned to the
case at that time, ordered plaintiff, who is representing himself, to immediately file his expert
witness disclosures. Plaintiff filed an initial expert witness list on October 31, 2016. Defendant sent
a letter to Cole alerting him to deficiencies with his filing. Plaintiff made additional disclosures on
November 30, 2016. On December 22, 2016, defendant filed a motion to strike plaintiff’s expert
disclosures and to preclude plaintiff from offering opinion testimony. Judge Clevert denied that
motion without prejudice on January 4, 2017.
On March 15, 2017, the case was reassigned to this Court. On May 30, 2017, defendant
renewed its motion to strike plaintiff’s expert disclosures and to preclude expert testimony. On July
30, defendant filed a motion to strike plaintiff’s third set of expert witness disclosures, which
plaintiff had filed on June 5. The Court will grant defendant’s motions.
Defendant explains that none of plaintiff’s expert witness disclosures meet the requirements
set forth in Fed. R. Civ. P. 26(a)(2). The disclosures do not include expert reports, which defendant
argues is necessary because none of the witnesses treated plaintiff and formed opinions during their

course of treatment. See Fed. R. Civ. P. 26(a)(2)(B). Fed. R. Civ. P. 37(c)(1) states that, if a party
fails to make disclosures required by Rule 26(a), “the party is not allowed to use that information
or witness to supply evidence . . . at trial, unless the failure was substantially justified.” This
sanction of exclusion is automatic and mandatory unless the party can show that its violation of
Rule 26(a) was either justified or harmless. Salgado v. General Motors Corp., 150 F.3d 735, 742
(7th Cir. 1988). Given that plaintiff had ample opportunity to cure the deficiencies in his expert
witness disclosures and given that discovery is now closed, plaintiff fails to make the showing
required to avoid the sanction of exclusion.
To be clear, this order restricts plaintiff’s ability to call the witnesses he identifies in his
disclosures as expert witnesses. Plaintiff may, to the extent relevant, call these witnesses as fact
witnesses. It is entirely possible, given plaintiff’s pro se status, that he does not fully appreciate the
differences between expert and fact witnesses. Certainly many of the summaries he provided in
regards to what he anticipates the witnesses’ testimony to be indicate that he plans to use them as
fact witnesses.
Finally, on June 29, 2017, defendant filed an expedited motion for leave to respond to
plaintiff’s motion for reconsideration of the Court’s denial of his motion to appoint counsel. The
Court considered the defendant’s response in denying plaintiff’s motion for reconsideration but did
not indicate that it was granting the motion for leave to respond through oversight. The motion will
be granted nunc pro tunc.
THEREFORE, the Court GRANTS defendant’s second motion to strike plaintiff’s expert
witness disclosures (ECF No. 135) and defendant’s motion to strike plaintiff’s third set of expert
witness disclosures (ECF No. 146).
2

FURTHER, the Court GRANTS defendant’s expedited motion for leave to respond to
plaintiff’s motion for reconsideration nunc pro tunc July 10, 2017. (ECF No. 144).
Dated at Green Bay, Wisconsin this 2nd

day of August, 2017.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court - WIED

3