United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO STRIKE PLAINTIFF'S EXPERT
L. LUDINGTON United States District Judge.
December 8, 2015, Plaintiff Kendra Scott filed this action
against Defendant Valley Electrical Contractors, Inc.
(“Valley Electrical”). ECF No. 1. Scott alleges
two counts of interference and retaliation in violation of
the Family and Medical Leave Act, 29 U.S.C. § 2612
et seq., and one count of pregnancy discrimination
in violation of the Michigan Elliot-Larsen Civil Rights Act,
MCL § 37.2102 et seq. Id. On March 2, 2016, the
Court issued a scheduling order which set the initial
disclosure deadline for March 16, 2016, Plaintiff's
expert disclosure deadline for July 5, 2016, and
Defendant's expert disclosure deadline for August 2,
2016. ECF No. 10. The scheduling order also set the discovery
cutoff for September 2, 2016. Id.
September 15, 2016, Valley Electrical filed a motion to
strike Scott's expert witness, Dr. Stafford, and bar the
admission of any evidence produced by Dr. Stafford. ECF No.
14. Dr. Stafford is an expert economist was retained by Scott
to calculate Scott's economic damages. For the following
reasons, Valley Electrical's motion will be denied.
Electrical argues in its motion that Dr. Stafford should be
stricken as an expert witness and that Scott should be barred
from introducing any reports or statements made by Dr.
Stafford because Scott did not produce the expert report
before the expert disclosure deadline. Scott's expert
disclosure deadline passed on July 5, 2016, and Scott admits
that it has not yet produced the report. Scott explains this
oversight by blaming a new calendaring system which
Scott's counsel has recently implemented. Because of a
clerical error made while the new system was implemented, the
deadline for the expert disclosure was not input into the
calendar. Scott argues that, because of this error, her
failure to timely produce the expert report is substantially
justified. She also argues that the failure to produce the
report was harmless.
Federal Rule of Civil Procedure 26(a)(2), the parties must
disclose any witnesses retained to provide expert testimony.
Fed.R.Civ.P. 26(a)(2)(A). These disclosures must be made
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). “[I]f the
witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the
party's employee regularly involve giving expert
testimony, ” such a disclosure “must be
accompanied by a written report - prepared and signed by the
(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
(iii) any exhibits that will be used to summarize or support
(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
(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). In interpreting Federal Rule of
Civil Procedure 26(a), the Sixth Circuit has explained that
“a report must be complete such that opposing counsel
is not forced to depose an expert in order to avoid an ambush
at trial; and moreover the report must be sufficiently
complete so as to shorten or decrease the need for expert
depositions and thus to conserve resources.” R. C.
Olmstead, Inc. v. C.U. Interface, LLC, 606 F.3d 262, 271
(6th Cir. 2010) (internal quotation and citation omitted).
a party fails to provide information or identify a witness as
required by 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 is harmless.” Fed.R.Civ.P.
37(c)(1). The party who is potentially subject to sanctions
bears the burden of proving harmlessness or justification.
Roberts ex rel. Johnson v. Galen of Virginia, Inc.,
325 F.3d 776, 782 (6th Cir. 2003). An omission is harmless if
it “involves an honest mistake on the part of a ...