United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
case has been referred to me, by consent of the parties, for
all proceedings and the entry of judgment, in accordance with
28 U.S.C. § 636(c). [ECF No. 60]. I have reviewed the
Defendant's Motion to Strike Plaintiff's Late
Identification/Designation of Experts, Plaintiff's
Opposition, and Defendant's Reply. [ECF Nos. 90, 93, 96].
I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). For the reasons set forth below,
Defendant's Motion to Strike will be DENIED.
background, Plaintiff Class Produce Group, LLC
(“CPG”) filed this lawsuit against Defendant
Harleysville Worcester Insurance Company
(“Harleysville”), alleging that Harleysville
failed to indemnify CPG pursuant to an insurance contract,
and failed to pay CPG's insurance claim. [ECF No. 38].
Judge Hollander entered a Scheduling Order on May 16, 2018
(“Scheduling Order”), setting a deadline of
August 17, 2018, for CPG to make disclosures in compliance
with Federal Rule of Civil Procedure 26(a)(2). [ECF No. 62].
The Scheduling Order also set a deadline of September 14,
2018, for Harleysville to make its Rule 26(a)(2) disclosures.
2, 2018, Harleysville served CPG with Interrogatories and
Requests for Production of Documents. [ECF No. 90-1 at 2].
After some discussion between counsel for CPG and
Harleysville, CPG produced documents to Harleysville on
August 24, and indicated that the remaining discovery
responses would be served the following week, August 27-31,
2018. [ECF No. 74-2]. Without further response or discussion
with CPG, Harleysville filed a Motion to Compel on September
6, 2018. [ECF No. 74]. On September 7, 2018, CPG served its
Answers and Responses to Harleysville's Interrogatories
and Requests for Production of Documents, identifying Mike
Purtell (“Mr. Purtell”) and Ken McLauchlan
(“Mr. McLauchlan”) as potential experts, and as
fact witnesses. [ECF No. 90-2]. CPG also identified Craig
Shannon (“Mr. Shannon”) as a fact witness.
Id. CPG's Answers included a brief statement of
Mr. Shannon's, Mr. Purtell's, and Mr.
McLauchlan's roles in the case, but CPG did not otherwise
provide any written reports. Id.
September 10, 2018, I held a telephonic conference discussing
the scheduling concerns raised by Harleysville, including its
concern that CPG had not timely filed its expert disclosures
in compliance with Rule 26(a)(2). As a result of that
conference, I entered an Amended Scheduling Order
(“Amended Scheduling Order”), setting a new
deadline of November 14, 2018, for Harleysville's Rule
26(a)(2) disclosures, and a new deadline of November 28,
2018, for CPG's rebuttal Rule 26(a)(2) disclosures. [ECF
No. 79]. On September 14, 2018, CPG filed Rule 26(a)(2)
disclosures with the Court. [ECF No. 80]. CPG identified as
“fact witnesses” Mr. Purtell, Mr. McLauchlan, and
Mr. Shannon, but CPG did not identify any witnesses as
must disclose to its adversary the identity of any witness it
plans to call at trial for the presentation of evidence.
Fed.R.Civ.P. 26(a)(2)(A). A witness that is retained solely
to provide expert testimony must prepare and sign a detailed
report that includes:
(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.
Fed. R. Civ. P. 26(a)(2)(B). This disclosure must be made
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). Further, “for
an expert whose report must be disclosed under Rule
26(a)(2)(B), the party's duty to supplement extends both
to information included in the report and to information
given during the expert's deposition. Any additions or
changes to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are
due.” Fed.R.Civ.P. 26(e)(2).
court finds that a party's expert disclosure was
untimely, the court must then determine the appropriate
sanction. Rule 37(c) provides that if a party fails to
disclose a witness pursuant to Rule 26(a) or (e), “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
harmless.” Fed.R.Civ.P. 37(c)(1). In addition to, or in
place of automatic exclusion, Rule 37(c) also permits the
court to “order payment of the reasonable expenses,
including attorney's fees caused by the failure, inform
the jury of the party's failure, and impose other
appropriate sanctions, including any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi).” Id.
argues that CPG failed to timely disclose its experts
pursuant to the requirements of Rule 26(a)(2). [ECF No. 90-1
at 5-6]. Harleysville's Motion, however, lacks merit
because CPG has not designated any experts in this case.
While CPG indicated in their Answers that Mr. McLauchlan and
Mr. Purtell were potential experts, [ECF No. 90-2], CPG
identified Mr. McLauchlan and Mr. Purtell only as fact
witnesses, along with another fact witness, Mr. Shannon, [ECF
No. 80]. CPG's disclosure of these fact witnesses after
the August 17, 2018 deadline for CPG's Rule 26(a)(2)
disclosures does not warrant any exclusion of expert
things stand, CPG will not be presenting any affirmative
expert testimony at trial. The Amended Scheduling Order still
permits Harleysville to identify expert witnesses, and if
such experts are identified, CPG can identify rebuttal
experts on or before November 28, 2018. See [ECF No.
79]. To the extent CPG intends to call Mr. McLauchlan, Mr.
Purtell, Mr. Shannon, or anyone else as expert witnesses, it
may only do so if the witnesses are appropriate rebuttal
expert witnesses. Identification of any rebuttal expert
witnesses must comport with the requirements of the Federal
Rules of Civil Procedure and the Local Rules of this Court.
reasons discussed above, Defendant's Motion to Strike,
[ECF No. 90], is DENIED.
the informal nature of this letter, it will be flagged as an