The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is a Motion to Strike the Untimely Served Expert Reports of Michael J. Kuzel and Donald Parker brought by Plaintiffs Robert and Deanna Vaskas. (Doc. 36.) Plaintiffs request the Court to strike supplemental expert reports that Defendants Kenworth Truck Company and PACCAR Inc served nearly three months after the close of expert discovery. Because Defendants cannot show that the untimeliness of these reports was substantially justified or harmless, Plaintiffs' motion will be granted.
This action stems from an incident that occurred on August 21, 2007, when Plaintiff Robert Vaskas fell while exiting a 2005 Kenworth T800 tractor (the "Kenworth tractor") designed and manufactured by Defendants. Plaintiffs commenced this action in the Court of Common Pleas of Lackawanna County, Pennsylvania, on August 11, 2009, alleging negligence, strict products liability, breach of warranty, and loss of consortium claims against Defendants. (Doc. 1, Ex. A.) On May 12, 2010, Defendants successfully removed the case to this Court on diversity grounds. (Doc. 1.)
This Court entered a Case Management Order on February 27, 2012 (Doc. 7) and amended the order on April 19, 2012 (Doc. 11). The Amended Case Management Order placed this case on the January 2013 trial list and required Plaintiffs and Defendants to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2) with respect to expert witnesses no later than August 1, 2012 and September 1, 2012, respectively. (Id. at ¶¶ 1, 4.) Dispositive motions as well as the disclosures required by Federal Rule of Civil Procedure 26(a)(3) were due by August 1, 2012, supplemental expert reports were due by October 1, 2012, and expert discovery was to be completed by October 15, 2012. (Id. at ¶¶ 2, 4--5.)
On August 1, 2012, Plaintiffs disclosed the expert report of Traci K. Campbell, P.E., dated May 4, 2009 (Doc. 21, Ex. 2) and Defendants moved for summary judgment (Doc. 13). On October 1, 2012, Plaintiffs received a supplemental report from Ms. Campbell, which they served on Defendants that same day. (Doc. 24 at 5, Ex. F.) On October 30, 2012, Plaintiffs filed their Motion to Supplement (Doc. 18), which asked this Court to consider the supplemental Campbell report in deciding Defendants' summary judgment motion. Defendants requested that this Court deny Plaintiffs' motion and strike the report or, alternatively, compel Plaintiffs to produce Ms. Campbell for deposition and grant Defendants leave to serve supplemental expert reports. (Doc. 21at 5--12.)
On January 8, 2013, the Court granted the Motion to Supplement, as Plaintiffs were timely in making their Rule 26(a) disclosures and supplementing them in accordance with Rule 26(e) and the Amended Case Management Order. (Doc. 25 at 4--6.) The Court did not grant Defendants leave to serve supplemental expert reports on Plaintiffs, but granted in part and denied in part Defendants' Motion for Summary Judgment. (Id. at 6--19.)
The following day, Defendants served upon Plaintiffs supplemental expert reports from Michael J. Kuzel, P.E., CHFP and Donald Parker, who respond to the supplemental Campbell report and note that the opinions in their initial reports remain unchanged. (Doc. 37 at 2; Doc. 39 at 3.) On February 14, 2013, Plaintiffs moved to strike the reports as untimely, arguing that Defendants' failure to comply with the Amended Case Management Order's deadlines was neither substantially justified nor harmless. (Doc. 37 at 3.) Defendants respond that the reports should not be stricken, as Defendants were substantially justified and acted in good faith in serving the reports when they did, Plaintiffs have not been prejudiced, and allowing the reports would not disrupt the Court's trial schedule. (Doc. 39 at 4--6.) This motion has been fully briefed and is ripe for disposition.
A. Violation of Rules 26(a) and 26(e)
Under the Federal Rules of Civil Procedure, parties must disclose the identity of expert witnesses who may testify at trial and accompany that disclosure with a written report prepared by the witnesses which includes "a complete statement of all opinions the witness will express and the basis and reasons for them; the date or other information considered by the witnesses in forming them; any exhibits that will be used to summarize or support them," as well as additional information about the witness's qualifications, prior expert testimony, and compensation received in the relevant case. Fed. R. Civ. P. 26(a)(2)(A)--(B). The parties must make these disclosures according to deadlines set in any case management order or other order issued by the court. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2) "imposes . . . [a] duty to disclose information regarding expert testimony in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Fed. R. Civ. P. 26, cmt. to 1993 Amendments. Parties also have a duty to timely supplement their expert disclosures when they are incorrect or incomplete if the additional information has not otherwise been made known to the other parties in the case. Fed. R. Civ. P. 26(a)(2)(E); Fed. R. Civ. P. 26(e). The duty to supplement applies to the expert's report and opinions given during deposition testimony. Fed. R. Civ. P. 26(e)(2). Supplemental reports must be disclosed by the time a party's pre-trial disclosures are due. Id.
In this case, the Amended Case Management Order dictated that supplemental expert reports were due no later than October 1, 2012 and that the deadline for completing expert discoverywas October 15, 2012. (Doc. 11 at ¶¶ 2, 4.) On October 1, 2012, Plaintiffs received a supplemental report from Ms. Campbell and served it upon Defendants the same day. (Doc. 24 at 5, Ex. F.) The supplemental reports from Messrs. Kuzel and Parker, which respond to the supplemental Campbell report but do not alter the opinions in the initial Kuzel and Parker reports, were not served upon Plaintiffs until January 9, 2013. (Doc. 37 at 2; Doc. 39 at 3.) Although the Court granted Plaintiffs' Motion to Supplement and considered their expert's supplemental report in deciding Defendants' Motion for Summary Judgment, it did not grant Defendants leave to file supplemental reports. (Doc. 25 ...