Free Motion to Strike - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. Defendant Schriro moves to strike Plaintiff's Supplemental Rule 26(a)(2) Expert Disclosure and moves to preclude the testimony of Plaintiff's expert, Charles Montgomery. In his Second Supplemental Disclosure Statement, dated August 8, 2005, Plaintiff disclosed that he had retained Charles Montgomery as an expert with regard to the protective segregation policies of the Arizona Department of Corrections. Because this Court did not specify a deadline for the submission of expert reports, Plaintiff had until November 16, 2005 to submit Mr. Montgomery's written report. On November 16, 2005, Plaintiff served the Defendant with a Supplemental Rule 26(a)(2) Expert Disclosure that consisted solely of the affidavit of Mr. Charles Montgomery. This is the same document that is attached as Exhibit I to Plaintiff's Separate Statement of Facts in Opposition to Defendant's Motion for Summary Judgment and
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No. CV 04-0323-PHX-FJM (GEE) MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL RULE 26(a)(2) DISCLOSURE AND MOTION TO PRECLUDE THE TESTIMONY OF CHARLES MONTGOMERY

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as Exhibit B to Plaintiff's Response in Opposition to Defendant's Motion to Strike the Affidavit of Charles Montgomery. To the extent Plaintiff may deem this affidavit to be Mr. Montgomery's written report, the affidavit does not meet the requirements of an expert report, as set forth in Rule 26(a)(2)(B), Federal Rules of Civil Procedure. Rule 26(a)(2)(B) provides Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Mr. Montgomery's affidavit is inadequate as support for Plaintiff's opposition to Defendant's Motion for Summary Judgment. As an expert report, the affidavit is woefully deficient. The report fails to provide "a complete statement of all opinions to be expressed and the basis and reasons therefor." In paragraph 4 of the affidavit/report, Montgomery identifies some of the documents he reviewed; however, he fails to specify all the data or other information he reviewed. An expert report must disclose all the information and data considered, including work product or other privileged or protected material supplied by the party to its testifying expert. Herman v. Marine Midland Bank, 207 F.R.D. 26, 29 (W.D.N.Y. 2002). Additionally, Mr. Montgomery fails to include all the exhibits to be used as a summary of or support for his opinions. For example, Montgomery cites to sections from the American Correctional Association, Standards for Adult Correctional Institutions (Affidavit,
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¶¶ 37-40), but he fails to include these documents in the list of information he considered in forming his opinions (Affidavit, ¶ 4 ) and does not include these documents as exhibits. Also, Montgomery fails to include a list of all publications that he authored within the preceding ten years and the compensation he is to be paid. Rule 37(c)(1) requires that the Court exclude the testimony of Plaintiff's expert unless Plaintiff has "substantial justification" for his failure to comply with the rules and then only if the failure is "harmless." The sanction of exclusion is "automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless." NutraSweet Co. v. X-L Engineering Co, 227 F.3d 776, 785-86 (7th Cir. 2000) (quoting Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)). As Plaintiff has failed, without substantial justification, to comply with the requirements of Rule 26(a)(2)(B), he should be precluded from using Charles Montgomery's affidavit/expert report and testimony as evidence at trial, at any hearing, or on any motion. See Rule 37, Federal Rules of Civil Procedure; See also Quevedo v. Trans­Pac. Shipping, Inc., 143 F.3d 1255, 1258 (9th Cir. 1998) (refusing to consider expert's report because it was filed one-and-a-half months late and plaintiff could have asked the district court for an extension of time.) Courts have upheld the use of the sanctions set forth in Rule 37, even when a litigant's entire cause of action or defense has been precluded. Ortiz­Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir.2001) (although the exclusion of an expert would prevent plaintiff from making out a case and was "a harsh sanction to be sure," it was "nevertheless within the wide latitude of" Rule 37(c)(1)). "Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). Plaintiff cannot contend that the failure to submit a proper expert report is harmless, as the trial date is rapidly approaching, and the Defendant

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has not been adequately or timely apprised of all the information and data that was considered by Charles Montgomery in forming his proffered opinions and has not been provided with the exhibits to be used as a summary of or support for these opinions. Failure to provide a detailed and timely expert report hampers the Defendant's ability to adequately prepare for and depose Charles Montgomery, hampers the Defendant's ability to retain a suitable rebuttal expert, impacts the ability of a rebuttal expert to adequately response to Charles Montgomery's opinions, and impacts the Defendant's ability to prepare for trial. "The purpose of a `detailed and complete' expert report as contemplated by Rule 26(a), Fed.R.Civ.P. 26 advisory Committee's note, is, in part, to minimize the expense of deposing experts, and to shorten direct examination and prevent an ambush at trial. Ortiz­Lopez, 248 F.3d at 35. See also Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir.1992) (stating that the Civil Rules provide for extensive pretrial disclosure of expert testimony and that "[t]his sort of disclosure is consonant with the federal courts' desire to make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent"). Plaintiff's November 16, 2005 disclosure is clearly not the "detailed and complete" expert report required by Rule 26(a)(2)(B). For the above stated reasons, Defendant's motion to strike Plaintiff's expert report should be granted, and Plaintiff should be precluded from using Charles Montgomery's expert report and testimony as evidence at trial, at any hearing, or on any motion. As Plaintiff's failure to provide a detailed and timely expert report impacts the Defendant's ability to retain a suitable rebuttal expert, the Defendant ... ... ...

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requests that her deadline for expert witness disclosure, as required by Rule 26(a)(2)(C), be stayed. RESPECTFULLY SUBMITTED on this 5th day of December, 2005. TERRY GODDARD Attorney General s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

ORIGINAL of the foregoing electronically filed this 5th day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 5th day of December, 2005, to: Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952

936093

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