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White Marlin Open, Inc. v. Heasley

United States District Court, D. Maryland

April 14, 2017

WHITE MARLIN OPEN, INC., et al., Plaintiffs,
v.
PHILLIP G. HEASLEY, Defendant.

          MEMORANDUM ORDER

          RICHARD D. BENNETT, United States District Judge

         This Memorandum Order addresses plaintiffs White Marlin Open (“WMO”), Mark Hutchison, and Richard Kosztyu's (collectively, “plaintiffs”) Motions to Exclude the report and polygraph examinations prepared by defendant's putative expert witness, Dr. John Palmatier. (“Plaintiffs' Motions”) (ECF Nos. 89, 90.) For the reasons stated below, Plaintiffs' Motions are GRANTED, and Defendant Heasley may not use or otherwise rely on Dr. Palmatier's report or polygraph examination results at any further stage of these proceedings.

         BACKGROUND

         As explained in this Court's March 29, 2017 Memorandum Order[1] (ECF No. 94), while defendant Philip G. Heasley's (“Heasley”) Motion for Protective Order (ECF No. 80) to preclude discovery of post-complaint polygraph materials was pending, Heasley disclosed to plaintiffs a “purported supplemental expert disclosure, naming an entirely new expert witness-an additional polygraph examiner named John Palmatier.” (ECF No. 89.) In letters to the Court dated March 28, 2017, and at a Motions Hearing conducted on March 29, 2017, plaintiffs argued that Dr. Palmatier's opinions and materials related to the polygraph examinations he performed should be excluded under Rules 26(a)(2) and 37(c) of the Federal Rules of Civil Procedure, as defendant Heasley failed to abide by this Court's Scheduling Order. (ECF Nos. 89, 90.)

         In support of their Motion, plaintiffs assert (1) that Dr. Palmatier is not a timely named rebuttal witness and (2) that Dr. Palmatier's examinations and opinions do not constitute a supplemental disclosure under Rule 26(e)(2), as these materials “relate to an entirely new subject matter.” (ECF No. 89.) Plaintiffs further argue that even if Dr. Palmatier's opinions and examinations could be classified as rebuttal or supplemental discovery materials, their untimely disclosure demands that they be excluded pursuant to Rule 37(c). (Id.)

         In opposition to Plaintiffs' Motions, Heasley asserts (1) that WMO waived the ten-day window (under the Tournament Rules) in which Heasley could produce polygraph examination results, and (2) that Dr. Palmatier's opinions and examination materials constitute a timely rebuttal report. (ECF No. 91.)

         At the March 29, 2017 Motions Hearing, this Court heard the parties' arguments on this matter, but reserved judgment on Plaintiffs' Motions and directed Heasley to produce for in camera review copies of the video evidence of Dr. Palmatier's polygraph examinations of Heasley and the shipmates. See ECF No. 94. The Court has now conducted that review.

         STANDARD OF REVIEW

         Pursuant to Rule 37(c) of the Federal Rules of Civil Procedure, “[a] party who fails to properly disclose information under Rule 26(a)(2) is precluded from introducing the information at trial, unless the failure was substantially justified or harmless.” Montgomery v. CSX Transportation, SAG-14-1520, 2016 WL 5390809, at *2 (D. Md. Sept. 27, 2016); Fed.R.Civ.P. 37(c). In determining whether such a failure was justified or harmless, this Court follows the five-factor test set forth by the United States Court of Appeals for the Fourth Circuit in Southern States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir. 2003). These factors are:

(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial;
(4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure to ...

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