PALMER v. RHODES MACHINERY
| Decision Date | 19 July 1999 |
| Docket Number | No. 98-CV-121B(J).,98-CV-121B(J). |
| Citation | 44 Fed.R.Serv.3d 1250,187 F.R.D. 653 |
| Parties | Robert PALMER, Plaintiff, v. RHODES MACHINERY, a foreign corporation, Defendant |
| Court | U.S. District Court — Northern District of Oklahoma |
Defendant filed a Motion for Relief from Reporting Requirement of Rule 26(a)(2)(B) . [Doc. No. 19-1]. Plaintiff requested that Defendant produce a list of cases in which Defendant’s expert witness, Dr. Sami Framjee has testified, as required by Fed.R.Civ.P. 26(c)(2)(B) . Defendant maintains that Dr. Framjee does not maintain such a list, that such a list would be costly, difficult, or impossible to create, and that Dr. Framjee should be excused from complying with the federal rule. Plaintiff requests the Court order Dr. Framjee to comply with the federal rule.
A hearing on the motion was held July 13, 1999. Gerald L. Hilsher appeared on behalf of Plaintiff. Bradley A. Jackson appeared on behalf of the Defendant. The Court OVERRULES Defendant’s Motion for Relief from the Reporting Requirements. [Dc. No. 19-1].
Fed.R.Civ.P. 26(a)(2)(B) , effective December 1, 1993, requires disclosure of expert reports. In accordance with the federal rule, the expert report must contain, “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.” Fed.R.Civ.Pro. 26(a)(2)(B) . Fed.R.Civ.Pro. 37(C)(1) provides the sanctions which are to be imposed if a party does not comply with the disclosure requirements.
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.
Fed.R.Civ.Pro. 37(c)(1) . Defendant therefore has the burden of showing either that substantial justification excuses disclosure of the required list, or that the failure to disclose the list is harmless.
The federal rule is clear as is the case law interpreting the rule. [FN1] Nguyen v. IBP, Inc., 162 F.R.D. 675 (D.Kan.1995) , is factually similar to the case presently before the Court. In Nguyen, the defendant filed a motion to exclude any testimony at trial from the plaintiff’s expert witness because the expert witness had not complied with Fed.R.Civ.P. 26(a)(2)(B) . The expert did provide a partial list of prior deposition testimony. The list was for less than three years (the Rule requires four), and did not provide complete information (no identification of the “cases” was provided although some attorneys names were listed). In addition, the curriculum vita was not signed and did not include a list of publications. The Nguyen court, in analyzing whether or not Plaintiff had sufficiently complied with the Rule noted that the first consideration is whether “substantial justification” exists for the failure to disclose the information. Absent meeting the substantial justification requirement, disclosure is required unless failure to comply with the rule is considered “harmless.” The Nguyen court held that the party requesting relief from the disclosure requirements had met neither of these requirements.
Defendant has filed a motion requesting that Defendant’s expert, Dr. Framjee, be excused from this requirement. Defendant cites numerous reasons for this request. Initially, Defendant notes that a list of 169 cases, covering an approximate three year period in which Dr. Framjee testified at trial *656 is posted at a site on the internet and is available to Plaintiff. Other than that list, Defendant maintains that Dr. Framjee does not have a list of cases in which he has been deposed or has testified in court.
Defendant acknowledges that the internet list of 169 cases does not comply with the federal rule. The time period for the compilation is a little more than three years, and the list includes only testimony in cases which went to trial and does not include the cases in which Dr. Framjee was deposed but did not testify. At oral argument, Defendant acknowledged that this did not constitute substantial compliance with the rule.
Defendant represented that he had a five minute telephone conversation with Dr. Framjee regarding his ability to produce the list required by the rule. Based on that conversation, Defendant’s understanding is that Dr. Framjee does not distinguish between patients whom he treats and individuals he examines at the request of an attorney. Defendant suggests that compiling such a list would require pulling files, reviewing billing records, and attempting to ascertain which bills were sent to attorneys for an IME. Defendant additionally asserts that this list would not be completely accurate because Dr. Framjee charges his $600 rate even if the deposition is canceled, if cancellation occurs less than 48 hours prior to the scheduled deposition. Defendant notes that compiling this information would require Dr. Framjee to hire someone and could take two months or longer to accomplish. Defendant observes that the current trial date is in October and suggests that such an undertaking this close to trial would interfere with the scheduled trial.
Defendant has supplied no direct information from Dr. Framjee, no affidavits, and no additional information to support the estimations. One possible alternative method for gathering the required list could be for Dr. Framjee to contact the estimated six law firms in town for whom he does the majority of his work to inquire if they can compile the required information.
The Court finds that the cost or difficulty of compiling the list is...
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