United States District Court, E.D. Michigan, Southern Division
M.D. Doe, et al., Plaintiffs,
Livonia Public Schools, et al., Defendants.
K. Majzoub Mag. Judge
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE
PLAINTIFFS' UNTIMELY DISCLOSED EXPERT WITNESS REPORT
E. LEVY UNITED STATES DISTRICT JUDGE
filed this lawsuit on April 15, 2013. (Dkt. 1.) On October
22, 2014, the Honorable Mark A. Goldsmith, who handled the
consolidated discovery for this and two related cases, issued
an order setting January 13, 2015 as the cutoff date for
“[p]laintiffs' experts' disclosures for all
experts whose report or testimony may be used in opposition
to summary judgment or otherwise in support of
liability.” (Dkt. 69 at 3.)
retained Sharon Hall, Ed.D., as an expert. On January 30,
2015, plaintiffs disclosed a report from Hall that contained
three opinions regarding liability. (See Dkt.
252-32.) Defendants deposed Hall in March of 2015. (Dkt.
two administrative stays and the issuance of Gohl v.
Livonia Pub. Schs. Sch. Dist., 836 F.3d 672 (6th Cir.
2016), which arose from one of the cases consolidated for
discovery with this case, the Court ordered new summary
judgment briefing on February 22, 2017. (Dkt. 240.)
filed a joint motion for summary judgment on March 31, 2017.
(Dkt. 244.) Plaintiffs responded to that motion for summary
judgment on May 5, 2017. (Dkt. 252.) The response included an
“Affidavit and IEP (Individualized Education Program)
Report of Sharon Hall.” (Dkt. 252-33.) The affidavit
was dated May 3, 2017. (Id. at 4.) The report was
dated August 24, 2015. (Id. at 5.) The report
analyzes whether the three minor plaintiffs' IEPs were in
compliance with the federal Individuals with Disabilities
Education Act (“IDEA”) and Michigan state
policies, and contains new and different analysis from that
found in Hall's first expert report.
state that this second affidavit and report were not
disclosed to them until the response to the motion for
summary judgment was filed. (See generally Dkt.
255.) Plaintiffs do not dispute this, but state that Dr. Hall
had sent the second report to plaintiffs' counsel in
August 2015, but he did not know that he had received it.
(Dkt. 258-3 at 4.) At some point between March 31, 2017 and
May 5, 2017, plaintiffs' counsel contacted Dr. Hall in
connection with plaintiffs' response to the motion for
summary judgment. (Id.) During that contact, Dr.
Hall informed plaintiffs' counsel that she had sent the
second report, and then sent it to plaintiffs' counsel
again. (Id.) Plaintiffs' counsel then included
the second report as an exhibit to the response to the motion
for summary judgment. (Dkt. 252-33.)
Civ. P. 26(a)(2)(B) requires that the disclosure of expert
testimony must be accompanied by a written report that must
(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 ...