NGUYEN v. IBP, INC.

• Decision Date: 27 July 1995
• Docket Number: No. 94-4046-SAC,94-4046-SAC
• Parties: Hong Van NGUYEN, Plaintiff, v. IBP, INC., Defendant.
• Court: U.S. District Court — District of Kansas

162 F.R.D. 675 Hong Van NGUYEN, Plaintiff,

v.

IBP, INC., Defendant. United States District Court, D. Kansas No. 94-4046-SAC. July 27, 1995.

*677 Brent C. Moerer, Topeka, KS, Gary E. Patterson , Patterson, Nelson, Nolla & Witteman, L.C., Wichita, KS, for plaintiff. J. Nick Badgerow , Michaela M. Warden, Spencer, Fane, Britt & Browne, Overland Park, KS, for defendant. MEMORANDUM AND ORDER NEWMAN, United States Magistrate Judge.

This matter is before the court on defendant’s Motion In Limine to Exclude Testimony at Trial of Plaintiff’s Proffered Expert Witness, Nathan Shechter, M.D. (Doc. 33.) Plaintiff has filed a response. Defendant has filed a reply. The matter is ready for the court’s decision.

*678 Defendant moves to exclude any testimony at the trial of the action from plaintiff’s retained expert witness, Nathan Shechter, M.D., on the grounds that plaintiff has failed to serve a proper disclosure under Fed.R.Civ.P. 26(a)(2)(B) . A medical report signed by the expert witness and setting forth a summary of his physical examination and medical opinions was provided by Dr. Shechter on or about October 24, 1994. Plaintiff also supplied an unsigned curriculum vitae and a list of patients about whom Dr. Shechter had given deposition testimony. The list identified the patient, either the patient’s attorney or the attorney scheduling the deposition, and the date of the deposition. [FN1] The telephone numbers of some of the attorneys were also included. For certain patients only the first name of the attorney was provided. In other instances, only the attorney’s last name was identified. The earliest deposition reflected on the list is January 8, 1992, the latest is October 28, 1994. Plaintiff also served a supplemental answer to defendant’s interrogatory requesting certain information about expert witnesses to be called at trial which stated that Dr. Shechter was to be paid the sum of $750.00 for his study and testimony in the case. The supplemental answer was verified by plaintiff on October 21, 1994. While it is unclear to the court as to when the curriculum vitae and the list of patients were served, the court notes plaintiff’s objection to defendant’s interrogatories was served October 24, 1994, in which the plaintiff objected to an interrogatory requiring a listing of other cases in which the witness had testified as an expert at trial or by deposition within the preceding four years, as broad and burdensome.

Before addressing the merits of the motion, the court must address the briefing in this case. To suggest that the briefing is less than precise would be a gross understatement. The memoranda were prepared sloppily and with total disregard for clarity and candor. In the first instance, defendant’s memorandum in support of the motion has so many inaccuracies in basic underlying facts that, on its face, it bears little resemblance to the actual dispute presented to the court. To the credit of defense counsel, the reply brief does acknowledge the inaccuracies and attempts to refocus on the primary issue to be considered by the court. Plaintiff, on the other hand, after noting the numerous inaccuracies in the defendant’s memorandum, engaged in the same sloppy practice. With briefing such as is filed here, the court has great difficulty in sorting out the issues in dispute as well as the facts relied upon by the parties to determine the issues. Counsel are admonished to devote the same degree of care to the preparation of their memoranda filed with the court as the litigants expect of the court in the resolution of the dispute presented. If a party’s position is of such merit to warrant incurring the time and expense in the presentation of or opposition to a motion, the litigants and the court have the right to expect that it will be carefully, accurately, and clearly presented with a sound basis in legal principle.

The court will now turn its attention to the dispute as gleaned from all the memoranda filed. Defendant argues that the plaintiff has failed to make the appropriate disclosures under Fed.R.Civ.P. 26(a)(2)(B) related to retained expert witnesses. Plaintiff boldly proclaims that “[p]laintiff has in fact fully complied with all disclosures pertaining to his expert witness, Nathan Shechter, M.D., under Fed.R.Civ.P. 26(a)(2) .” [FN2]

Fed.Civ.P. 26(a)(2)(B) , effective December 1, 1993, 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 *679 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.

The rule clearly identifies the manner of disclosure as well as the specific disclosures to be made concerning a retained expert witness. A written report must be prepared and signed by the witness. The information to be disclosed in the report shall include:

a. a complete statement of all opinions to be expressed and the reasons and basis underlying the opinions;

b. the data or other information considered by the witness in forming the opinions;

c. any exhibits to be used as a summary of or support for the opinions;

d. the qualifications of the witness including a list of publications authored within the past 10 years;

e. the compensation to be paid for the study and testimony; and

f. a list of any other cases in which the witness has testified within the preceding four years, whether by deposition or at trial.

The disclosures served by plaintiff clearly and indisputably do not comply with Fed.R.Civ.P. 26(a)(2)(B) . The only document signed by the expert witness was a letter addressing the expert’s opinions and the basis therefor, the data considered by the expert, and exhibits to be used as a summary of or support for the opinions. While a curriculum vitae was provided, it was not signed by the witness and did not include publications authored by the witness within the past 10 years. Although plaintiff, by interrogatory answer, provided the compensation agreement, this agreement was not a part of the report signed by the witness. Plaintiff’s counsel supplied a list of 137 patients about whom the witness had apparently testified during the 34 month period prior to October 28, 1994, and the dates of the deposition testimony. No identification of the “cases” in which these depositions were given is provided. The court or administrative agency in which the depositions were taken is not provided. Although an attorney’s name is provided as to most of the patients, in many instances the first or last name of the attorney is missing. The telephone numbers are not supplied for the attorneys for 55 patients. The list is not signed by the witness. It includes entries for less than three years rather than for four years as required by the rule.

Fed.R.Civ.P. 37(c)(1) supplies the sanctions to be imposed in the event that a party fails to make the required disclosures. It provides:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial ... any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.

Under Rule 37(c)(1) , the court must first consider whether the party has established “ *680 substantial justification” for the failure to disclose and then consider whether the failure to disclose was “harmless.” Substantial justification requires justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request. The proponent’s position must have a reasonable basis in law and fact. The test is satisfied if there exists a genuine dispute concerning compliance. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) . Failure to comply with the mandate of the Rule is harmless when there is no prejudice to the party entitled to the disclosure. The burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosure.

Plaintiff offers no explanation as to why he did not provide a report signed by the expert witness in the form required by Rule 26 . Plaintiff explains only the deficiencies in the listing of cases. Plaintiff states that, while the witness has testified in hundreds of cases over the years, the only information retained by him related to his...