United States District Court, M.D. Pennsylvania
PATRICIA A. SHEETZ, et al., Plaintiffs,
WAL-MART STORES, INC., et al., Defendants.
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
the Court is a renewed motion in limine to preclude
the testimony of Plaintiff's medical expert, Dr. Ronald
E. DiSimone, pursuant to Federal Rule of Civil
Procedure 37(c)(1) and 37(b)(2)(A). (Doc. 94). The Court
previously denied the Defendant's earlier motion in
limine with regard to Dr. DiSimone, in which Defendants
argued that Dr. DiSimone's testimony should be precluded
as Dr. DiSimone was not identified as a potential medical
expert in a timely manner, and initial disclosures were not
amended to include Dr. DiSimone. (Doc. 88; Doc.
Order denying the Defendant's motion, the Court Ordered
Plaintiffs Patricia and Richard Sheetz to provide the
testimonial history of Dr. DiSimone by December 6, 2017.
(Doc. 89). On December 6, 2017, counsel for the
Plaintiffs responded with an affidavit from Dr. DiSimone,
wherein Dr. DiSimone states that he does not keep records of
his testimonial history. (Doc. 91). On February 12,
2018, the Defendants renewed their motion in limine,
arguing that the failure to provide a testimonial history for
a proffered expert violates the Federal Rules of Civil
Procedure and that Dr. DiSimone's testimony should be
precluded under Rule 37 based on the factors articulated in
Meyers v. Pennypack Woods Home Ownership Ass'n,
559 F.2d 894, 904-905 (3d Cir. 1977) despite the
“extreme” nature of such a sanction. Given the
time constraints affecting this action, the targeted nature
of this motion, and the familiarity of the parties with the
facts of this case, the Court writes a in a truncated manner
to avoid further delay.
Federal Rules of Civil Procedure require a party who retains
an expert witness to provide a written report to the
opposition containing specific information regarding the
witness, including “a list of all other cases in which,
during the previous 4 years, the witness testified as an
expert at trial or by deposition[.]” Fed. R. Civ.
P. 26(a)(2)(B)(v). Under Rule 37(c), a party failing to
comply with Rule 26(a) 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). Plaintiffs argue that their failure
to provide a testimonial history is substantially justified
because Dr. DiSimone does not keep such a record and has
never been required to provide one before, and in any event
the failure to disclose the information is harmless because
he is testifying to the specific facts of this case such as
treatment received by Sheetz as opposed to a more generalized
discussion. (Doc. 97).
Court finds that prior non-compliance with Rule 26(a) does
not constitute substantial justification for a failure to
comply in this case. The fact that Dr. DiSimone does not keep
a record of his testimonial history does not prevent him from
attempting to create one, especially when Ordered by the
Court to do so months ago. See Bethel v. U.S.,
ex rel. Veterans Admin. Med. Ctr. of Denver, Colo., No.
05-CV-01336, 2007 WL 1732791, *6 (D.Colo. June 13, 2007)
(“[s]elf-induced inability to comply with a rule is not
justified.”) (citing Norris v. Murphy, No. Civ.
A. 00-12599, 2003 WL 21488640 (D. Mass. June 26,
2003)). There does not appear to be any dispute that Dr.
DiSimone has testified as an expert within the last four
language of Rule 26(a) is unambiguous and other courts have
held the party retaining the expert accountable for the
failures in compliance by the expert themselves.
A party may not simply retain an expert and then make
whatever disclosures the expert is willing or able to make
notwithstanding the known requirements of Rule 26.
The adverse party should not be placed at a disadvantage or
be deprived of the full benefits of Rule 26 by the
selection of an expert who cannot or will not make the
required disclosures. The selection and retention of an
expert witness is within the control of the party employing
the expert. To the extent that there is a disadvantage
created by the expert's failure to disclose it must be
borne by the party retaining the expert witness.
Nguyen v. IBP, Inc., 162 F.R.D. 675, 681 (D.Kansas
should not retain experts to testify in federal court without
obtaining, at the outset, assurances that the expert has the
information at his disposal which is required to be included
in the expert report required by that rule.”
Norris, 2003 WL 21488640, at *4.
the Court conclusively declare non-compliance harmless. The
amendment notes introducing the expert disclosures into
Rule 26 reflect the intention to afford
“reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from
other witnesses.” The Plaintiffs argue that the
Defendant had the opportunity to conduct cross examination on
Dr. DiSimone's testimonial history at his deposition.
However, this assertion ignores the fact that the Defendant
had no information with which to conduct any meaningful
a dispute arose with regard to Dr. DiSimone because his
specialty is orthopedics as opposed to neurological disorders
such as Parkinson's Disease, which is identified as a
causal factor by the Defendant's expert, Dr. Bennett.
(Doc. 97-3). Because there was already an issue with
the nature of Dr. DiSimone's testimony, adequate
disclosure of prior testimonial history is paramount to
effective cross examination. The failure to disclose this
information prevents the Defendant from conducting any
meaningful research into prior scope of testimony by Dr.
DiSimone, the acceptance of similar testimony by Dr. DiSimone
in other cases, etc.
apply the Meyers factors to evaluate whether expert
exclusion is warranted. See McGovern v. Correct
Care Sols., LLC., 2018 U.S. Dist. Lexis 18871, *12 (W.D.
Pa. Feb. 5, 2018).
(1) the prejudice or surprise in fact of the party against
whom the excluded witnesses ...