The opinion of the court was delivered by: United States Magistrate Judge Cynthia Reed Eddy
Pending before this Court is Plaintiff's Motion in Limine to Exclude Defendant's Supplemental Expert Disclosure. (ECF No. 73). Specifically, Plaintiff seeks to strike Defendant's Supplemental Expert Report because it was disclosed to Plaintiff after the time for expert discovery has closed. The motion is briefed and ripe for disposition. For the following reasons, Plaintiff's motion is denied.
The factual allegations of this case are well known by the parties, and are not imperative for the instant dispute; therefore the Court will only focus on those facts necessary for determination of the instant motion. By joint motion of the parties, the Court extended discovery deadlines, ordering fact discovery to be completed by October 14, 2011, and expert discovery to be completed by November 18, 2011. Order of 9/12/11, (ECF No. 20). On October 11, 2012, Defendant sent Plaintiff a Supplemental Expert Report prepared by defense liability expert, Timothy Kyper. Pl.'s Mot. in Limine, (ECF No. 73) at ¶ 18. The substance of the Supplemental Report concerns the Plaintiff's deposition of a defense fact discovery witness, Edward Antonacci, taken two days prior on October 8, 2012. Def.'s Resp. to Pl.'s Mot. in Limine, (ECF No. 76) at ¶ 1. The parties stipulated to extending the discovery period for Plaintiff to take Mr. Antonacci's deposition, although it was taken nearly one year after fact discovery had closed, and Mr. Antonacci was identified in Defendant's Answers to Plaintiff's Interrogatories. Id., (ECF No. 76) at ¶ 2-3. Plaintiff argues that through the Supplemental Expert Report, Mr. Kyper "offers new opinions and new evidence [other than those offered in his Expert Report] which was or should have been in the possession of the defense prior to the close of discovery." Pl.'s Brief in Support of Mot. in Limine, (ECF No. 73-1) at 2. Defendant contends that Mr. Kyper prepared his Supplemental Expert Report from information recently made of record from Mr. Antonacci's deposition. Def.'s Resp. to Pl.'s Mot. in Limine, (ECF No. 76) at ¶ 4. Defendant further argues that the "supplemental report in no way alters or expands" Mr. Kyper's original Expert Report, but "reiterates [his] original opinions." Id., (ECF No. 76) at ¶ 5 (emphasis in original).
Federal Rule of Civil Procedure 26(a)(2)(C) establishes the timing of required disclosures of experts' identities and reports, providing:
(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation of a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party's disclosure.
Fed. R. Civ. P. 26(a)(2)(C).
Under Federal Rule of Civil Procedure 37(c)(1), if a party "fails to provide information or identify a witness as required in Rule 26(a) . the party is not allowed to use that information or witness to supply evidence . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). However, "the imposition of sanctions for abuse of discovery" is discretionary. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir. 1995). The non-producing party has the burden of proving substantial justification or that its failure to produce was harmless. Waites v. Kirkbride Ctr., 2012 WL 3104503, *6 (E.D.Pa. July 30, 2012) (citations omitted).
The Court of Appeals for the Third Circuit has imposed that a district court must consider the following factors in exercising its discretion to determine whether to ...