United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE
Hobbs (“Plaintiff”) brought an action against
Sean St. Martin (“Defendant”) for Money Had and
Received (Count I) and Unjust Enrichment (Count II). (Am.
Compl., ECF No. 29.) Now pending before the Court is
Plaintiff's Motion to Strike Defendant's Expert. (ECF
No. 47.) The Motion has been briefed (ECF Nos. 47-1, 52, and
54) and no hearing is required, see Local Rule 105.6
(D. Md. 2016). For the reasons set forth below,
Plaintiff's Motion will be granted.
parties have submitted lengthy briefs and factual narratives
in support of their arguments regarding Defendant's
expert witness. However, the issue presented is in fact
narrow and straightforward. The instant dispute can be
summarized as follows: The Court entered an Order with which
neither party complied and now each attempts to cry foul over
the other's noncompliance.
February 10, 2017, the Court entered a Scheduling Order. (ECF
No. 34.) That Order set a deadline by which each party was
required to make his Rule 26(a) disclosures, to include the
disclosure of any expert witness and that witness's
report. Plaintiff's expert disclosures were due on or
before May 29, 2017, and Defendant's expert disclosures
were due on or before June 26, 2017.
30, 2017, one day after the due date, Plaintiff served
Defendant with a document titled “Plaintiff Gary
Hobbs's Disclosure of Expert Witness.” (ECF No.
52-2.) The Disclosure identified Anthony D. Hulbert, a
Certified Public Accountant (“CPA”), as
Plaintiff's expert witness who was “expected to
testify as to the financial and accounting records . . . of
Defendant, Stag Mountain, LLC, Tamarack, and any other entity
in which Defendant and/or Richard Hagen are or were members
or held an interest.” (Id. at 2.) The
Disclosure did not include an expert report. According to
Plaintiff, he was unable “to produce an expert report
or further disclose [his] expert's testimony at th[e]
time” because Defendant had yet to produce
“numerous financial and accounting records” that
were the subject of a motion to compel. (Id.)
Plaintiff never provided a report from Mr. Hulbert.
served Plaintiff with his expert disclosure on June 26, 2017.
Defendant's disclosure, like Plaintiff's, identified
a single expert-Joel B. Charkatz, a CPA. (Defendant Sean St.
Martin's Disclosure of Expert Witness, ECF No. 47-4.)
Also like Plaintiff, Defendant failed to include an expert
report with his Disclosure. Defendant stated that he had not
included an expert report because he had not received a
report from Plaintiff's expert “to which Mr.
Charkatz may respond.” (Id. at 2.) Defendant,
however, “reserve[d] the right to produce an expert
report and supplement his disclosure upon the receipt of a
report from Plaintiff.” (Id.)
parties apparently resolved the discovery disputes referenced
in Plaintiff's Disclosure, and they filed a Joint
Stipulation to Modify Discovery on July 21, 2017. (ECF No.
38.) The Joint Stipulation requested an additional ninety
days to complete discovery, making November 13, 2017, the
date for completion of discovery. Notably, the parties did
not seek to extend the deadline-which had already passed-for
their Rule 26(a) disclosures. On July 24, 2017, the Court
granted the parties' request and modified the schedule
accordingly. (ECF No. 39.)
mystifyingly, the parties apparently never discussed each
other's failure to provide an expert report. Nor did
either party ever inquire of the other as to whether he still
intended to rely on the expert he had disclosed. Then, on
November 13, 2017, the last day of discovery, Defendant
provided a report from his expert Mr. Charkatz. Plaintiff,
understandably surprised by this last second (and long
overdue) report, sought to depose Mr. Charkatz; however,
Defendant refused to make his expert available for a
deposition because discovery had closed. Plaintiff then filed
the instant motion to preclude Defendant from using his
expert's opinions in support of summary judgment or at
meantime, the Court denied Defendant's Motion for Summary
Judgment. Defendant did not rely on Mr. Charkatz's
opinion in that Motion. However, he presumably intends to do
so at trial.
Standard for Excluding Evidence Under Rule
37(c)(1) provides that a party who “fails to provide
information or identify a witness as required by Rule 26(a) .
. . 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.” To determine whether a party's
nondisclosure of information required by Rule 26(a) is
“substantially justified” or
“harmless” courts in this Circuit are guided by
the following five factors:
(1) the surprise to the party against whom the evidence would