United States District Court, W.D. Virginia, Charlottesville Division
CYNTHIA B. SCOTT, ET AL., Plaintiffs,
HAROLD W. CLARKE, ET AL., Defendants.
NORMAN K. MOON, District Judge.
Defendants have filed a motion for leave to belatedly supplement their Federal Rule of Civil Procedure 26(a)(2) disclosures of expert testimony. For the reasons that follow, the motion will be denied.
A two-week trial in this matter is set to begin on December 1, 2014. The deadline for Defendants' expert witness disclosures was established on March 31, 2014 (in the latest of the oft-amended scheduling orders entered in this case), and it elapsed more than three and a half months before Defendants moved to supplement their disclosures. Defendants filed their motion on September 23, 2014, and Plaintiffs timely responded in opposition, but Defendants did not file a reply. The parties presented their arguments on the matter at the conclusion of the hearing on the parties' cross-motions for summary judgment on October 17, 2014.
Rule 26(a)(2)(D) expressly provides that "[a] party must make these disclosures at the times and in the sequence that the court orders." (Emphasis added.) "If a party fails to... identify a witness as required by Rule 26(a)... the party is not allowed to use that... witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). The consideration of whether a party's failure to satisfy its expert disclosure obligations under Rule 26(a)(2) should be excused under Rule 37(c)(1) is guided by the following factors:
(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party's failure to name the witness before trial; and (5) the importance of the testimony.
Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003) (citations and quotations omitted).
"Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent's ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court's management of the case." Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005). A district court has "particularly wide latitude" to exercise its discretion to exclude expert witness testimony proffered by a party that has failed to meet the disclosure requirements imposed by Fed.R.Civ.P. 26(a). Id. at 279.
The parties jointly submitted an amended scheduling order, which I entered on March 31, 2014. That amended scheduling order established May 30, 2014, as the date when Defendants were to provide Plaintiffs with their Rule 26(a)(2) expert witness disclosures. The expert disclosure provided by the VDOC Defendants (the remaining Defendants in this case) on that date did not include any proposed medical experts. Corizon, which was then a defendant but has since been dismissed on the agreement of the remaining parties, designated three medical experts in its disclosures submitted on June 13, 2014, but the VDOC Defendants did not endorse or adopt the Corizon experts as VDOC experts, and after Corizon was dismissed from this case on July 31, 2014, the VDOC Defendants failed to indicate any intention to designate the Corizon experts as their own.
Rule 26(a)(2)(D) states that a party "must" make the disclosures required by other parts of the Rule "at the times and in the sequence that the court orders." The Rule further provides that "[a]bsent a stipulation or a court order, the disclosures must be made... at least 90 days before the date set for trial[.]" Fed.R.Civ.P. 26(a)(2)(D)(i). Here, Defendants failed to heed the amended scheduling order's deadline of May 30, 2014, to designate and provide the requisite disclosures for any medical expert they might wish to use, and they failed to advise Plaintiffs within 90 days of the December 1, 2014, trial date of their intent to use Corizon's medical experts' opinion testimony. In short, Defendants failed to satisfy either of the Rule 26(a)(2)(D) alternatives.
Given Defendants' failure to comply with Rule 26(a)(2), I must apply the "automatic sanction" imposed by Rule 37(c)(1) of exclusion of testimony by the Corizon experts from trial, unless the VDOC can show that its procedural default was either "substantially justified" or is "harmless." See Campbell v. United States, 470 F.Appx. 153, 156 (4th Cir 2012) (per curiam) ("[T]he Federal Rules impose an automatic sanction' of exclusion of a party's expert witness for failure to adhere to the expert witness requirements set forth in Rule 26(a)." (quoting Southern States, 318 F.3d at 592 n. 2)).
Defendants fail to meet their burden to show that the factors weigh in favor of the relief they seek. See Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) ("The burden of establishing these factors lies with the non-disclosing party[.]" (citing Southern States, 318 F.3d at 596 ("[i]t is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless" ...