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Hillesheim v. O. J.'S Cafe, Inc.

United States District Court, D. Nebraska

August 31, 2018

ZACH HILLESHEIM, Plaintiff,
v.
O. J.'S CAFE, INC., Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion to Strike Untimely Supplemental Expert Report of Larry B. Fleming, ECF No. 54, filed by Plaintiff Zach Hillesheim. For the reasons stated below, the Motion will be denied.

         BACKGROUND

         On June 29, 2018, Defendant, O.J.'s Cafe, Inc. (O.J.'s Cafe), filed a Motion for Summary Judgment, ECF No. 34. O.J.'s Cafe argued, among other things, [1] that Hillesheim's claim was moot because O.J.'s Cafe retrofitted its parking lot and ramp to eliminate any conditions that were not strictly compliant with the Americans with Disabilities Act (ADA). In support of its mootness argument, O.J.'s Cafe submitted the Supplemental Expert Report of Larry Fleming, ECF No. 36-7.

         Hillesheim also filed a Motion for Summary Judgment, ECF No. 39; Motion to Exclude, ECF No. 42; and Motion to Strike Untimely Supplemental Expert Report of Larry B. Fleming, ECF No. 54. He argues the Supplemental Expert Report of Larry Fleming was untimely, and the untimely disclosure was not substantially justified or harmless. He asks the Court to strike Fleming's Supplemental Expert Report under Federal Rule of Civil Procedure 16(f) and 37(c)(1).

         O.J.'s Cafe argues the Supplemental Expert Report was not untimely because it was provided before the pretrial disclosure deadline. In the alternative, O.J.'s Cafe argues that the report should not be excluded because the untimeliness was substantially justified or harmless.

         DISCUSSION

         I. Timeliness of the Supplemental Expert Report of Larry Fleming

         Federal Rule of Civil Procedure 26(a)(2) requires that parties disclose the identity of any expert witness and that the expert prepare a report containing “a complete statement of all opinions the witness will express and the basis and reasons” for those opinions. Fed.R.Civ.P. 26(a)(2). “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The parties must supplement these disclosures when required under Rule 26(e). Fed.R.Civ.P. 26(a)(2)(E). In this case, Magistrate Judge Nelson issued an Amended Order Setting Final Schedule for Progression of Case (“Scheduling Order”). Hillesheim argues the Supplemental Expert Report was due on April 16, 2018, based on the following language in the Scheduling Order:

3. Disclosure of Expert Witnesses. Each defendant, counter-defendant, and cross-defendant shall identify expert witnesses and shall serve expert reports by April 16, 2018. If necessary to refute the disclosed opinions of an expert witness of an opponent, a plaintiff, counter-claimant, or cross-claimant may disclose additional expert witnesses not later than April 30, 2018, provided that the disclosing party then provides all of the information described in Fed.R.Civ.P. 26(a)(2) and makes the expert witness available for deposition prior to the date set for completion of depositions. Supplementation of these disclosures, if originally made prior to these deadlines, shall be made on these deadlines as to any information for which supplementation is addressed in Fed.R.Civ.P. 26(e). The testimony of the expert at trial shall be limited to the information disclosed in accordance with this paragraph.

ECF No. 20, Page ID 67-68. The Court acknowledges that the language “shall be made on these deadlines” could be interpreted to require disclosure of both the initial reports and all supplements by the deadline for the disclosure of initial expert reports. The Court rejects that interpretation, however, because it would eliminate the continuing duty to supplement under Rule 26(e) with respect to new developments occurring after the initial report deadline.

         An interpretation more consistent with the Federal Rules of Civil Procedure is that O.J.'s Cafe's initial expert reports were due on April 16, 2018, and, if disclosed prior to that date, O.J.'s Cafe had a duty to supplement on that date if any additions or changes had occurred. Under this interpretation, additional supplemental expert reports based on new developments continued to be required, and permitted, pursuant to Rule 26(e) which requires that any additions or changes to the information contained in an expert's report must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. “Unless the court orders otherwise, [pretrial] disclosures must be made at least 30 days before trial.” Fed.R.Civ.P. 26(a)(3)(B). Pursuant to paragraph 4 of the Scheduling Order, Rule 26(a)(3) pretrial disclosures are due on November 16, 2018. ECF No. 20, Page ID 68. Because Rule 26(e)(2) ties the deadline for supplementing expert reports to the deadline for Rule 26(a)(3) disclosures, supplemental expert reports required under Rule 26(e) are also due on November 16, 2018. Thus, Supplemental Expert Report, ECF No. 36-7, provided to Hillesheim on June 25, 2018, was not untimely.

         II. Failure to Disclose or Supplement Under Federal Rule of Civil Procedure 37(c)(1)

         Even if the Court considered the report untimely, it would not be stricken because any delay in providing the Supplemental Expert Report was harmless. “If a party fails to provide information . . . or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, ...


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