The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Defendants Earl Miller, James Schneider, Robert Stanziola, Joyce P. Stevens, and Sugarloaf Township's ("Township Defendants") motion in limine. (Doc. No. 106.) The motion is fully briefed and ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion.
Plaintiffs filed their original complaint in this civil rights action on April 24, 2006. (Doc. No. 1.) On January 8, 2007, Plaintiffs responded to Defendants' discovery requests. (Doc. No. 107-1, Ex. A at 2.) In their response, Plaintiffs listed three potential expert witnesses: Mr. Harry E. Russ, Jr., Dr. Vincent Digiovanni, and Dr. Kristine Terry. (Doc. No. 107-1, Ex. A at 7-8.) Plaintiffs also noted that "other experts to be provided promptly as plaintiffs decide areas of expertise needed." (Id. at 8.) According to Plaintiffs' response, the listed experts would testify that Plaintiff Charmaine Maynard requires the use of a service dog, and that her service dog was trained by an expert trainer. (Id.) Further, Plaintiffs indicated that Dr. Kristine Terry was "needed to prove mental anguish." (Id. at 7.) On March 28, 2007, Judge Munley issued an order establishing August 31, 2007, as the deadline for disclosure of Plaintiffs' expert reports. (Doc. No. 23.) Plaintiffs did not file any expert reports. On September 17, 2008, the Township Defendants filed a motion in limine to preclude expert testimony as a sanction for Plaintiffs' failure to file expert reports. (Doc. No. 41.) Days before the pretrial conference scheduled for October 9, 2008, Plaintiffs filed a motion to continue the pretrial conference in contemplation of their motion to amend the complaint, add additional defendants, and extend discovery. (Doc. No. 46.) Judge Munley granted Plaintiffs leave to file an amended complaint (Doc. No. 55), and Plaintiffs did so on August 7, 2009 (Doc. No. 56). Defendants filed motions to dismiss on September 25, 2009, October 21, 2009, and October 28, 2009. (Doc. Nos. 59, 74, 78.) On February 8, 2011, Judge Munley adopted Magistrate Judge Carlson's report and recommendation and granted Defendants' motions to dismiss. (Doc. No. 104.) As a result, Counts 16 through 22 of Plaintiffs' amended complaint were dismissed. (Id.)
A pretrial conference was set for April 5, 2011. (Doc. No. 105.) In their Pretrial Memorandum filed March 29, 2011, Plaintiffs listed the following expert witnesses they expected to call at trial: Dr. Vincent Digiovanni, Dr. Kristine Terry, Mr. Harry E. Russ, Jr., Dr. Eugene Stish, Dr. Steven Katz, and "[a]ll other doctors listed in Plaintiffs' Answer to Defendants' discovery and those outlined by her in her deposition." (Doc. No. 115 at 9-10.) The Township Defendants filed the present motion in limine and a brief in support on March 22, 2011. (Doc. Nos. 106, 107.) Defendant John Hudson filed motions to join in the Township Defendants' motion in limine and brief in support on March 22, 2011. (Doc. Nos.109, 110.) Plaintiffs filed a response on March 30, 2011. (Doc. No. 116.) On March 31, 2011, Judge Munley cancelled the pretrial conference and reassigned the case to this Court. (Doc. Nos. 117, 118.)
Defendants' motion in limine seeks to exclude any expert testimony regarding liability or damages because Plaintiffs have not provided any expert reports as required by the Court's scheduling order. (Doc. No. 106 at 2.) Defendants' motion also seeks to exclude "any testimony or evidence by the Plaintiff, or any other witness, concerning physical, psychological and/or emotional injuries, and/or property damages allegedly sustained by Plaintiff as a result of the incidents complained of." (Id.) The Court will address each of these issues in turn.
A. Exclusion of Expert Testimony
Federal Rule of Civil Procedure 26(a)(2)(B) requires a party to submit a written report disclosing the following information about any proposed expert witness:
. . . [A] complete statement of all opinions the witness will express and the basis for them; the facts or data considered by the witness in forming them; any exhibits that will be used to summarize or support them; any exhibits that will be used to summarize or support them; the witness's qualifications, including a list of all publications authored in the previous 10 years; 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 a statement of the compensation to be paid for the study and testimony in the case.
Fed R. Civ. P. 26(a)(2)(B). Plaintiffs do not deny that they have failed to file expert reports in this action. When a party fails to provide information as required by Rule 26(a), Rule 37(c)(1) provides that "the party is not allowed to use that information or witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). In addition to or in lieu of this sanction, Rule 37(c)(1) states that the Court may, on motion, impose other appropriate sanctions, including those listed in Rule 37(b)(2)(A). Id. "The non-producing party shoulders the burden of proving substantial justification for its conduct or that the failure to produce was harmless." Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D. Pa. 2002). Plaintiffs have failed to meet either of these conditions.
The Third Circuit has not directly addressed the "substantial justification" standard.
See Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119, 140 n.23 (3d Cir. 2009). However, courts have defined "substantial justification" as "justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with this disclosure request." Tolerico, 205 F.R.D. at 175. Plaintiffs do not assert that they were not required to comply with Judge Munley's March 28, 2007 order. Instead, Plaintiffs argue that Defendants are on notice of the identity of the experts whom they wish to call at trial and the purpose for which the experts will be called. (Doc. No. 116 at 2.) Plaintiffs' explanation for their failure to file expert reports is that their "concentration has been to discover the evidence collected in any state-run or federal investigation of the Defendants and Additional Defendants." (Id.) The deadline for Plaintiffs' expert reports passed over three and a half years ago. Moreover, Plaintiffs were on notice that they had failed to file expert reports when the Township Defendants filed a motion in limine on this very issue on September 17, 2008. (Doc. No. 41.) The Court cannot say that Plaintiffs have substantial justification for their failure to comply with Rule 26(a)(2)(B).
Nor can the Court conclude that Plaintiffs' failure to comply with Rule 26(a)(2)(B) is "harmless." "A party's misconduct is harmless if it involves an honest mistake, coupled with sufficient knowledge by the other party of the material that has not been produced." Tolerico, 205 F.R.D. at 176 (citing Stalworth v. E-Z Serve Convenience Stores, 199 F.R.D. 366, 369 (M.D. Ala. 2001)). While Plaintiffs argue that Defendants have been on notice of the identity of the experts and their purpose, Plaintiffs have failed to show that Defendants have "sufficient knowledge" of the substance of Plaintiffs' experts' intended testimony. As a result, Defendants have not had the opportunity ...