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Doe v. Livonia Public Schools

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

January 22, 2018

M.D. Doe, et al., Plaintiffs,
v.
Livonia Public Schools, et al., Defendants.

          Mona K. Majzoub Mag. Judge

          ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' UNTIMELY DISCLOSED EXPERT WITNESS REPORT [255]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.)

         Plaintiffs 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. 244-41.)

         Following 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.)

         Defendants 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.

         Defendants 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.)

         Fed. R. Civ. P. 26(a)(2)(B) requires that the disclosure of expert testimony must be accompanied by a written report that must contain:

(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 ...

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