Free Response in Opposition to Motion - District Court of Arizona - Arizona

Amanda Vaught SB #023035
LAW OFFICES

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WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.
Williams Center, Eighth Floor 5210 E. Williams Circle Tucson, AZ 85711

(520)790-5828

Attorneys for Plaintiff
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IN THE UNITED STATES DISTRICT COURT
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FOR THE STATE OF ARIZONA
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Gerald Byerly, Plaintiff, vs. Deputy Warden, et al., Defendants.

NO. CV 04-0323-PHX-FJM (GEE) PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL RULE 26(a)(2) DISCLOSURE AND MOTION TO PRECLUDE THE TESTIMONY OF CHARLES MONTGOMERY

Plaintiff Gerald Byerly ("Plaintiff") responds in opposition to Defendant's Motion to Strike Plaintiff's Supplemental Rule 26(a)(2) Disclosure and Motion to Preclude the Testimony of Charles Montgomery ("Motion"). For the reasons set forth below, Defendant's Motion should be denied. I. Introduction Defendant has moved to strike Plaintiff's Supplemental Rule 26(a)(2) Disclosure and to preclude the testimony of Plaintiff's expert witness, Mr. Charles Montgomery ("Montgomery") as evidence at trial, at any hearing, or on any motion. As grounds for such a drastic sanction, Defendant asserts that Montgomery's expert report fails to comply with Rule 26(a)(2) because his expert report did not disclose: (1) how much Montgomery is being paid for his testimony and study; (2) whether Montgomery has authored any publications within the past ten years; (3) two pages from the American

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Correctional Association handbook referenced in his expert report; and (4) a small portion of the information that Montgomery considered in preparing his expert report. (Motion at pp. 2-3, ll. 19-4.) The sanction proffered by Defendant is not appropriate in light of Defendant's failure to consult with Plaintiff's counsel as required by Rule 7.2(j) of the Rules of Practice of the United States District Court for the District of Arizona, regarding the subject of her Motion. Defendant's Motion should also be denied on its merits because Plaintiff's failure to supplement Montgomery's expert report, until after Defendant filed her Motion is harmless or was substantially justified. II. Defendant Failed to Comply with Local Rule of Practice 7.2(j) Prior to Filing Her Motion and Her Request for Relief Should be Denied. Rule 7.2(j) of the Rules of Practice of the United States District Court for the

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5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

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District of Arizona, states that no discovery motion will be considered or decided
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unless a statement of moving counsel is attached certifying that after personal
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consultation and sincere efforts to do so, counsel have been unable to satisfactorily
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resolve the matter. L.R.Civ.P. 7.2(j). Rule 7.2(j) further warns that any discovery
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motion brought before the Court without prior personal consolation with the other party
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and a sincere effort to resolve the matter, may result in sanctions. Id.
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Defendant's Motion is a discovery motion within the purview of Rule 7.2(j).
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Counsel for Defendant failed to contact undersigned counsel regarding the subject
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matter of her Motion prior to filing her Motion. Defendant's Motion is also void of a
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statement by her counsel certifying that sincere personal consultation with
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undersigned counsel has been unable to resolve this matter. Accordingly, under Rule
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7.2(j), this Court should deny Defendant the relief requested.
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III.
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Montgomery's Expert Report and Supplemental Disclosure Should Neither be Stricken nor Precluded Because the Absence of Any Information from Montgomery's Expert Report is Harmless or was Substantially Justified. If full compliance with Rule 26(a), Federal Rules of Civil Procedure, and 26(e)(1)
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is not made, Rule 37(c)(1) mandates some sanction, the degree and severity of which are within the discretion of the trial judge. Keener v. United States, 181 F.RD. 639, 641 (D.Mont.1998). Rule 37(c)(1) of the Federal Rules of Civil Procedure provides in pertinent part, as follows: A party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information, not so disclosed .... Fed. R. Civ. P. 37. Throughout her Motion, Defendant improperly argues that Montgomery's entire

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expert report and testimony should be inadmissible in any motion, at any hearing and
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at trial. (Motion at p. 4, ll. 19-22.) Contrary to Defendant's argument, Rule 37(c) only
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contemplates as a sanction for a failure to disclose, that the undisclosed testimony or
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information be inadmissible at trial. See Fed. R. Civ. P. 37(c). See also S. States
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Rack & Fixture, Inc., v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir.2003) (Rule
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26(e)(1) requires a party to supplement its experts' reports when the party learns of
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new information and, if the party fails to do so, the court may exclude any new opinion
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offered by the expert); Fenji v. Feld, 301 F.Supp.2d 781, 814-15 (N.D.Ill. 2003) (since
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the plaintiff was aware of the witnesses' roles, the failure to supplement was harmless).
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Here, Plaintiff timely disclosed Montgomery as his expert witness, properly
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offered Montgomery's affidavit testimony in support of Plaintiff's opposition to
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Defendant's Motion for Summary Judgment and timely disclosed Montgomery's expert
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report on November 16, 2005.
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(Motion at pp. 1-2, ll. 20-1.) Under Rule 37(c),

Defendant's Motion to exclude Montgomery's testimony and expert report in toto in any motion, at any hearing and at trial is misplaced and should be denied.
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Addressing Defendant's Motion on the merits, courts have held that two express
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exceptions ameliorate the harshness of Rule 37(c)(1): The information may be
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introduced if the parties' failure to disclose the required information is substantially
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1 justified or harmless. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 2 1106 (9th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 952-53(10th 3 Cir.2002). A party's failure to disclose is substantially justified where the non-moving 4 party has a reasonable basis in law and fact, and where there exists a dispute 5 concerning complaince. Sender v. Mann, 225 F.R.D. 645, 656 (D.Col. 2004) (citations 6 omitted.). Failure to comply with the mandate of the Rule is harmless when there is 7 no prejudice to the party entitled to the disclosure. Id.
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In determining whether a violation of Rule 26(a) is justified or harmless, the

9 district court should consider the following factors: (1) the prejudice or surprise to the 10 party against whom the testimony is offered; (2) the ability of the offering party to cure
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; 12 and (4) the moving party's bad faith or willfulness." Jacobsen, 287 F.3d at 953; quoting 13 Woodworker's Supply Inc. v. Principal Mut. Life Ins. Co., 17 F.3d 170 F.3d 985, 993 14 (10th Cir.1999) (Internal quotations omitted). 15

As set forth supra, Defendant claims that she is unable to "retain a suitable

16 expert" and "response (sic) to Charles Montgomery's opinions" because she does not 17 know: (1) how much Montgomery is being paid for his testimony and study; (2) whether 18 Montgomery has authored any publications within the past ten years; and (3) all of the 19 information Montgomery considered in preparing his expert report. Defendant also 20 claims that Montgomery's failure to attach as an exhibit to his expert report two (2) 21 pages from the American Correctional Association handbook has prevented her from 22 being able to respond to Montgomery's expert opinions. (Motion at pp. 2-3, ll. 4.) 23 Applying the four factors enumerated in Jacobsen to this case, the exclusion of the 24 information subject to this Motion from use in any motion, at any hearing, or at trial is 25 not warranted. 26

Two days after receiving Defendant's Motion, Plaintiff supplemented
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1 Montgomery's expert report pursuant to Rule 26(a)(2) and Rule 26(e), by providing 2 Defendant with Montgomery's compensation agreement, informing her that 3 Montgomery has never authored any publications and providing her with the two (2) 4 pages from the American Correctional Association handbook which Montgomery had 5 properly cited and referenced in his expert report. (Dkt. at 84.) In his supplemental 6 disclosure Montgomery also advised Defendant that in preparing his expert opinions 7 he reviewed the Arizona Department of Corrections Classification Manual that
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

8 Defendant finally provided to Plaintiff on October 24, 2005.

(Id.)

Defendant

9 acknowledges that Montgomery had already set forth the other documents that he 10 considered in forming his expert opinions in paragraph 4 of his expert report. (Motion
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 at p. 3, ll. 1-2.) 12

Under the first prong of Jacobsen, Defendant cannot be found to be prejudiced

13 by Montgomery's non-disclosure of the above referenced information in his expert 14 report that was provided to her on November 16, 2005. Knowing the compensation 15 Montgomery is receiving for his testimony in this case does not impede Defendant's 16 ability to retain a rebuttal expert or otherwise respond to his expert opinions. Similarly, 17 Montgomery's failure to disclose his authorship, or non-authorship, of any publications 18 does not hinder Defendant's ability to respond to Montgomery's expert opinions. See 19 Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D.Kan. 1995) (plaintiff's failure to provide 20 a report including a statement of the expert's compensation agreement, the expert's 21 qualifications, or an identity of the publications authored by the expert during the past 22 ten years was harmless). 23

Second, Plaintiff has promptly cured any deficiencies in Montgomery's expert

24 report by disclosing the information that is the subject of Defendant's Motion on 25 December 7, 2005. (Dkt. at 84.) Accordingly, the second prong of Jacobsen does not 26 support excluding the information that is the subject of this Motion from use in any -5Case 2:04-cv-00323-FJM Document 85 Filed 12/13/2005 Page 5 of 7

1 motion, at any hearing or at trial. 2

Under the third prong of Jacobsen, to the extent that it is admissible, introducing The

3 the information that is the subject of this Motion will not disrupt the trial.

4 information that was left out of Montgomery's expert report, but that has now already 5 bee provided to Defendant, is minuscule and, contrary to Defendant's assertion, does 6 not provide Plaintiff with an opportunity to "ambush" Defendant at trial. (Motion at p. 7 4, ll. 11.) Addressing the fourth prong of Jacobsen, Defendant has not argued that
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

8 Plaintiff acted in bad faith or willfully failed to disclose this information in Montgomery's 9 initial expert report and there is no evidence to support such a finding. 10
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

None of the factors enumerated in Jacobsen support a finding that Plaintiff

11 should be precluded from using the information subject to this Motion in any motion, 12 at any hearing or at trial. Accordingly, Defendant's Motion should be denied. 13 IV. 14

Conclusion As a result of Defendant's failure to comply with Rule 7.2(j) prior to filing this

15 Motion, her requested relief should be denied. Under Rule 37(c) and Jacobsen, 16 Defendant's Motion should be denied on its merits as Plaintiff has already 17 supplemented Montgomery's expert report and the failure to have included this 18 information in Montgomery's initial expert report is harmless. 19 20 21 22 23 24 25 COPY of the foregoing sent via 26 this 13th day of December, 2005, to: -6Case 2:04-cv-00323-FJM Document 85 Filed 12/13/2005 Page 6 of 7

DATED this 13th day of December, 2005. WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

By s/ Amanda Vaught Amanda Vaught Attorneys for Plaintiff

electronic mail and U.S. Mail

1 2 United States District Court 3 401 West Washington

Clerk of the Court District of Arizona

Phoenix, AZ 85003

4 5 electronic mail this 13th day

COPY of the foregoing sent via of December, 2005, to:

6 7 Assistant Attorney General
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

Kelley J. Morrissey, Esq.

8 Phoenix, AZ 85007-2926 9 Attorneys for Defendant 10 __s/ Liza Dausinger

1275 West Washington Street [email protected]

Liza Dausinger

5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

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