Ogle v. Koorsen Fire & Sec., Inc.

336 F.Supp.3d 874

Tiffany OGLE, Plaintiff,

v.KOORSEN FIRE & SECURITY, INC., et al., Defendants.

Case No. 3:17-cv-127

United States District Court, S.D. Ohio, Western Division, at Dayton.

Signed September 26, 2018

Kenneth J. Ignozzi, Dyer Garofalo Mann & Schultz-3, Dayton, OH, for Plaintiff.

Kenneth Roger Schoeni, John D. Wagner, Megan Brittney Hall, Kohnen and Patton LLP, Cincinnati, OH, for Defendants.

ORDER AND ENTRY: (1) GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S DISCLOSURE OF EXPERT WITNESSES AND TO EXCLUDE PLAINTIFF'S EXPERT WITNESSES (DOC. 58); (2) STRIKING PLAINTIFF'S EXPERT DISCLOSURE (DOC. 57) WITH REGARD TO ALL EXPERTS EXCEPT NATHANIEL LEE AND EXCLUDING ALL OF PLAINTIFF'S EXPERTS EXCEPT FOR MR. LEE; (3) DIRECTING PLAINTIFF'S COUNSEL TO PROMPTLY FILE A MOTION TO AMEND THE CALENDAR REGARDING THE EXPERT DISCLOSURE OF MR. LEE ONLY; AND (4) ORDERING PLAINTIFF'S COUNSEL TO SHOW CAUSE AS TO WHY HE SHOULD NOT BE SANCTIONED

Michael J. Newman, United States Magistrate Judge

This civil case is before the Court on the motion filed by Defendants Koorsen Fire & Security, Inc. and Commercial Fire, LLC (hereinafter referred to as "Defendants") requesting that the Court strike Plaintiff's expert witness disclosure and exclude Plaintiff's expert witnesses in this case. Doc. 58. Plaintiff failed to timely file a memorandum in opposition to Defendants' motion and, therefore, the undersigned issued an Order to Show Cause directing Plaintiff to either (1) show cause as to why Defendants' motion should not be granted; or (2) file a memorandum in opposition. Doc. 59. Thereafter, in response to the Court's Order to Show Cause, Plaintiff filed a memorandum in opposition. Doc. 60. Defendants promptly filed a reply. Doc. 61.

On September 24, 2018, the Court heard oral argument on the merits of Defendants' motion. See doc. 64. Attorney Kenneth Ignozzi participated on behalf of Plaintiff. Attorney John Wagner appeared on behalf of Defendants. Attorney Corie Marty participated on behalf of McDonald's Corporation, which is a party to this suit because of a subrogation interest. As is made clear in the memorandum in opposition,¹ and was further made clear from hearing counsels' argument during the hearing, there is no dispute that Plaintiff's counsel failed to timely identify expert witnesses; that his subsequently-filed untimely disclosure fails to satisfy the requirements of Rule 26(a)(2); and that the limited issue presently before the Court is whether the untimely and inadequate disclosure was harmless so as to avoid the exclusion of Plaintiff's expert witnesses under Fed. R. Civ. P. 37(c)(1).

During the hearing, the Court heard extensive argument from counsel for Plaintiff and Defendants concerning Defendants' motion to strike and exclude experts. At the conclusion of the hearing, the Court directed Plaintiff's counsel, without objection, to email to the Court for in camera review the reports and records produced in discovery that he contends satisfies Plaintiff's disclosure requirements under Rule 26(a)(2). The Court received those documents via email from Plaintiff's counsel and has reviewed them carefully in camera . The undersigned has carefully considered all of the foregoing, and Defendants' motion is now ripe for decision.

I.

At issue in Defendants' motion is Plaintiff's expert witness disclosure. See doc. 58. The disclosure of expert witnesses is governed by Fed. R. Civ. P. 26(a)(2), which provides that, "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705."

In addition to the mere disclosure of each expert's identity, the party's expert disclosure must "be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Fed. R. Civ. P. 26(a)(2)(B). Reports for such experts must contain certain specific information, namely: "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case."Id.

With regard to experts not retained or specially employed to provide expert testimony in a case, e.g. , treating doctors, the mere disclosure of the expert's identity is insufficient. See Fed. R. Civ. P. 26(a)(2)(C). Instead, the disclosure of a non-retained expert's identity must be accompanied by a statement regarding: "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705 ; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Id. ; Little Hocking Water Ass'n, Inc. v. E.I. DuPont de Nemours & Co. , No. 2:09-CV-1081, 2015 WL 1105840, at *7 (S.D. Ohio Mar. 11, 2015). While the disclosures required by Rule 26(a)(2)(C) are "considerably less extensive than the report required by Rule 26(a)(2)(B) [,]" the Rule does "not permit a Plaintiff to ‘dump’ medical records on the defendant, nor do they eliminate the requirement of providing summary disclosures." Gleed v. AT & T Servs., Inc. , No. 13-12479, 2016 WL 1451532, at *2 (E.D. Mich. Apr. 12, 2016) ; see also Cosby v. Claiborne Cnty. Bd. of Educ. , No. 3:17-CV-278-RLJ-HBG, 2018 WL 3233336, at *3 (E.D. Tenn. July 2, 2018) (finding that identifying physicians in response to interrogatories and the production of medical records in discovery "does not satisfy Rule 26(a)(2)(C)" and "does not constitute harmlessness under Rule 37(c)(1)"); Little Hocking Water Ass'n , 2015 WL 1105840, at *8 (holding that a Rule 26(a)(2)(C)"summary is defined as a brief account that states the main points of a larger body of information," not "a prodigious volume of material"; "it does not suffice to reference large bodies of material as sources of facts").²

"If a party fails to provide information or identify a witness as required by Rule 26(a)... the party is not allowed to use that information or 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). In fact, Rule 37(c)(1)"requires absolute compliance with Rule 26(a), that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.’ " Roberts ex rel. Johnson v. Galen of Va., Inc. , 325 F.3d 776, 782 (6th Cir. 2003). In other words, "the sanction of exclusion [of experts] is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless[.]" Id . (citing Salgado v. General Motors Corp. , 150 F.3d 735, 742 (7th Cir. 1998) ). The burden of providing substantial justification or harmlessness is on the offending party, i.e. , Plaintiff in this case. Id .

II.

Here, pursuant to the Court's Preliminary Pretrial Conference Order, Plaintiff's Rule 26 expert disclosure was to be completed on or before July 30, 2018.³ Doc. 39 at PageID 243. That Order, consistent with the requirements of Rule 26(a)(2), specifically requires that, in addition to merely revealing the identity of each expert, the party must "provide a copy of the expert's report or the subject matter and summary of facts and opinions for experts not required to prepare reports." Doc. 39 at PageID 243 (internal citation of Rule 26(a) omitted). As stated in the Court's General Order, "[t]he purpose of this filing of witness lists is to permit timely completion of discovery." See Dayton General Order No. 12-01 (effective Feb. 2, 2012). There is no dispute that Plaintiff's counsel failed to make a Rule 26 expert disclosure on or before July 30, 2018. Doc. 58 at PageID 303.

On August 6, 2018 -- i.e. , a week after Plaintiff's expert disclosure deadline -- Plaintiff's counsel filed a document with the Court in which counsel identified eight individuals as experts. Doc. 57. The experts specifically identified are: Nathaniel Lee⁴ ; John B. Gillen, M.D.; Sue Carter, M.D.; Faiq Akhter, M.D.; David O. Wright, M.D.; Charles D. May, D.O.; Laura Matrka, M.D.; and Jonathan Bernstein, M.D. Doc. 57 at PageID 299-300. In addition to these identified individuals, Plaintiff also identifies an entire medical clinic -- namely James Voice & Swallowing⁵ -- and unidentified medical records custodians. Id . at PageID 300. Nowhere on the disclosure does Plaintiff's counsel indicate whether or not the experts identified were retained or specially employed. Id. at PageID 299-300. In other words, Defendants (and the Court) are left to speculate as to whether Rule 26(a)(2)(B) or Rule 26(a)(2)(C) applies to each expert. Plaintiff's memorandum in opposition offers no clarification on this issue, though counsel made a vague reference during the September 24th hearing that some or all of these individuals are non-retained experts who provided treatment to Plaintiff.

Nevertheless, without dispute, the document filed by Plaintiff's counsel was unaccompanied by any report authored by any of the experts identified. Id. ; see also doc. 60 at PageID 330 (wherein Plaintiff's counsel admits that, "[w]hen experts were disclosed by Plaintiff, [expert reports] were not provided at that time"). Thus, insofar as any of the experts identified were retained or specially employed to provide expert testimony at trial, the disclosure, on its face, fails to comply with Rule 26(a)(2)(B).

To the extent...