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Scott v. Valley Electrical Contractors, Inc.

United States District Court, E.D. Michigan, Northern Division

October 17, 2016

KENDRA SCOTT, Plaintiff,
v.
VALLEY ELECTRICAL CONTRACTORS, INC., Defendant.

          ORDER DENYING MOTION TO STRIKE PLAINTIFF'S EXPERT WITNESS

          THOMAS L. LUDINGTON United States District Judge.

         On 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.

         On 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.

         I.

         Valley 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.

         Under 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 witness” containing:

(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). 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).

         “If 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 ...


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