Rivera, Jessie v. Dr. R. Gupta

Filing 95

ORDER that defendant Dr. Ravi Gupta's motion to strike plaintiff's expert Dr. Finley Brown, Jr. (dkt. ## 79 , 93 ) is DENIED. Signed by District Judge William M. Conley on 2/23/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JESSIE RIVERA,
Plaintiff,
v.

OPINION AND ORDER
13-cv-056-wmc

DR. RAVI GUPTA,
Defendant.
Defendant Dr. Ravi Gupta filed a motion to compel plaintiff Jessie Rivera to comply
with Federal Rule of Civil Procedure 26(a)(2)(B)(v) by producing a complete list of
depositions or trials at which his expert, Dr. Finley Brown Jr., had testified in the last four
years, and to produce Dr. Brown for a second deposition concerning his prior testimony.
(Dkt. #79.) The court granted that motion in part, reserved in part, and directed further
briefing by the parties. (1/8/18 Order (dkt. #89).) Having now reviewed the supplement,
plaintiff’s brief accompanying that supplement, and defendant’s response, the court will
deny any further relief, and specifically deny defendant’s subsequent request to strike Dr.
Gupta.
As detailed in defendant’s brief in support of his motion to compel, Dr. Brown
initially listed six cases for which he previously provided testimony. For some of those
cases, Dr. Brown failed to provide the full name of the case or the court. During his
deposition, Dr. Brown also acknowledged that the list was incomplete, but claimed he did
not maintain a list of cases for which he had previously provided testimony and simply
listed six cases that he remembered. After his deposition, in response to a letter from

defendant’s counsel, plaintiff provided a supplement list of an additional five cases, without
identifying the courts involved. The supplement was not, however, signed by Dr. Brown.
The court then ordered that Dr. Brown review his records and provide a complete
list of past testimony consistent with Rule 26. As detailed in plaintiff’s supplemental brief,
Dr. Brown refused to comply further without additional payment. The court agrees with
plaintiff’s assessment that such a demand is not reasonable given that he was required to
provide the necessary disclosures as part of his original retainer. 1 In light of Dr. Brown’s
refusal to comply, plaintiff’s counsel took their own extensive steps to further supplement
the list of cases for which Dr. Brown has provided deposition or trial testimony in the last
four years. (See Pl.’s Suppl. Br. (dkt. #91) 3-4).) The revised list now contains twelves
cases, with the case name, court and law firm that retained Dr. Brown’s services, along with
deposition and trial testimony transcripts for six of the cases. (Pl.’s Suppl. Br., Ex. 1 (dkt.
#91-1).)
Defendant nevertheless presses for exclusion of Dr. Brown’s testimony from trial
under Federal Rule of civil Procedure 37(c)(1) in his supplemental brief. Failure to comply
with Rule 26(a)(2) may result in the offending party not being allowed to introduce that
expert witness’s testimony as “evidence on a motion, at a hearing, or at a trial.” See Fed.

The court shares plaintiff’s counsel’s apparent frustration with Dr. Brown, not least of which
because the lawyers acting as plaintiff’s counsel were themselves recruited by this court to represent
plaintiff on a pro bono basis, and have clearly devoted significant resources to that representation,
including fronting the costs of this expert. If counsel for plaintiff could direct the court to some
authority for sanctioning Dr. Brown, the court would be willing to entertain such a motion.
Regardless, by agreeing to act as an expert in this matter and accepting a sizeable retainer for his
services, Dr. Brown has subjected himself to this court’s jurisdiction and he could be compelled to
testify at trial, if necessary consistent with the terms of his engagement agreement.

1

2

R. Civ. P. 37(c)(1). Indeed, exclusion of the witness’s testimony is “automatic and
mandatory” unless the offending party can establish “that its violation of Rule 26(a)(2)
was either justified or harmless.” Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir.
2005) (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
Both exceptions apply here. While Dr. Brown refused to comply with Rule 26, this
is not plaintiff’s fault and plaintiff’s counsel has taken their own steps to substantially
comply with the disclosure requirements. Moreover, plaintiff has acknowledged that “Dr.
Brown has made the majority of his income serving as an expert witness, has been retained
twenty to thirty times a year, almost always by a plaintiff, and he has testified at deposition
six to twelve (or more) times per year and at trial up to four times a year.” (Pl.’s Suppl.
Br. (dkt. #91) 6.) The supplemental disclosure, coupled with the production of deposition
and trial transcripts, which are not required under Rule 26, and plaintiff’s stipulation is
sufficient to ameliorate any prejudice to defendant.

Regardless, plaintiff has amply

justified his inability to comply any further. If upon review of the supplemental disclosure,
including the trial transcripts, defendant seeks additional stipulations or other relief, the
court would entertain such a motion.
Accordingly, the court will deny defendant’s motion to strike Dr. Brown’s testimony
as a sanction under Rule 37.

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ORDER
IT IS ORDERED that defendant Dr. Ravi Gupta’s motion to strike plaintiff’s expert
Dr. Finley Brown, Jr. (dkt. ##79, 93) is DENIED.
Entered this 23rd day of February, 2018.
BY THE COURT:

/s/
_______________________________________
WILLIAM M. CONLEY
District Judge

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