United States District Court, W.D. Pennsylvania
R. Hornak, Chief United States District Judge
18, 2019, the Court entered a Civil Pretrial Order that
required expert disclosures pursuant to Federal Rule of Civil
Procedure 26 to be made on or before August 19, 2019. (ECF
No. 61.) Plaintiff disclosed a singular expert witness, R.
Matthew Hanak II, before that deadline. (Pl.'s Expert
Designation, ECF No. 62.) However, Plaintiffs counsel failed
to file the accompanying Expert Report before the August 19,
2019, deadline had passed. (Def., Beaver County's, Mot.
to Strike the Expert Report of R. Matthew Hanak, ECF No. 69.)
Defendant now moves to strike the Expert Report due to its
untimely filing. (Id.) For the reasons that follow,
Defendant's Motion will be DENIED without prejudice.
Rule of Civil Procedure 26(a)(2)(B) requires an expert
disclosure to be "accompanied by a written
report-prepared and signed by the witness-if the witness is
one retained or specially employed to provide expert
testimony in the case . . . ." Rule 37 sets forth
potential sanctions for a party's failure to disclose
such report: "the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is harmless." Fed.R.Civ.P. 37(c)(1).
"The non-producing party has the burden of proving
substantial justification or harmlessness." Bryant
v. Wilkes-Barre Hosp. Co., No. 14-1062, 2016 WL 3615264,
at *8 (M.D. Pa. July 6, 2016).
Circuit has enumerated four (4) factors that a district court
should consider before excluding evidence under Rule 37:
(1) the prejudice or surprise of the party against whom the
excluded evidence would have been admitted; (2) the ability
of the party to cure that prejudice; (3) the extent to which
allowing the evidence would disrupt the orderly and efficient
trial of the case or other cases in the court; and (4) bad
faith or willfulness in failing to comply with a court order
or discovery obligation.
Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d
Cir. 2000). A district court should also consider the
"importance of the excluded testimony."
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719
(3d Cir. 1997).
same time, a district court retains wide discretion to
determine the admissibility of evidence. Brooks v.
Price, 121 Fed.Appx. 961, 965 (3d Cir. 2005) (citing
Newman v. GHS Osteopathic, Inc., 60 F.3d
153, 156 (3d Cir. 1995)). Moreover, our Circuit has
emphasized that exclusion of evidence under Rule 37(c)(1) is
an "extreme sanction" that should be reserved for
situations where the failure to disclose stems from bad faith
or the resulting prejudice cannot be cured. See Canterna
v. United States, 319 Fed.Appx. 93, 98 (3d Cir. 2008)
("This Court recognizes that the exclusion of evidence
for failure to comply with a pretrial order is an
'extreme sanction' that is not normally imposed
'absent a showing of willful deception or flagrant
disregard of a court order by the proponent of the
evidence.'"); In re TMI Litigation, 193
F.3d 613, 721-22 (3d Cir. 1999) ("the exclusion of
evidence for violation of a discovery order is an
Striking the Report for Untimeliness
the Defendant primarily objects to the Expert Report on
grounds of timeliness. (Def., Beaver County's, Mem. of
Law in Supp. of Its Mot. to Strike the Expert Report of R.
Matthew Hanak, ECF No. 70.) The gist of the Defendant's
argument is that because of the Plaintiffs untimely filing,
the case will "necessarily need to be delayed yet
again," and the proper remedy is to strike the Expert
Report altogether. (Id. at 5.) In the Court's
estimation, however, such a draconian measure is not required
at this juncture.
first factor articulated by Nicholas-prejudice or
surprise-breaks in the Defendant's favor: the Expert
Report provides new information that was not disclosed in a
timely fashion. However, filing of the Report (albeit
untimely) should not have come as a "surprise" to
the Defendant. Hanak was disclosed before the August 19,
2019, deadline and the Defendant should have anticipated that
a report would likely follow, given that Rule 26(a)(2)(B)
the second factor, the Defendant appears to suggest that
there is no available cure for this prejudice, because
allowing the untimely Report would "necessitate an
entire rescheduling of the Civil Pretrial Order." (ECF
No. 70, at 5). The Court emphasizes, however, that this
matter has not been scheduled for trial, nor is the case
likely to be tried in the next few months, given the
Court's current schedule. Additionally, the Court can,
and will if necessary, adjust the case-management deadlines
to mitigate any prejudice the Defendant might face (and such
adjustment is unlikely to impact the earliest-possible date
trial could begin).
put, the Court is hard-pressed to find a reason to strike the
Report if no trial date has yet been set. The Court would be
more likely to exclude the untimely Report if it were
"faced with a rapidly approaching, set trial date."
Pansini v. Tram Co., No. 17-3948, 2019 WL 1299036,
at *4 (E.D. Pa. Mar. 21, 2019). And this rationale aligns
with the reasoning set forth by more than a few other courts
in our Circuit. See, e.g., Pager v. Metro. Edison,
No. 17-934, 2019 WL 4736227, at * 16 (M.D. Pa. Sept. 27,
2019) (finding no prejudice to the moving party where
"there is no trial date yet scheduled"); United
Healthcare Servs., Inc. v. Cephalon, Inc., No. 17-555,
2019 WL 2994660, at *8 (E.D. Pa. July 8, 2019) (allowing the
non-producing party "to present some limited new expert
opinions," which would not "significantly disrupt
the 'orderly and efficient trial of the case'");
Pansini, 2019 WL 1299036, at *4 ("although this
relief certainly will prolong the case, admitting [the]
expert report will not unduly disrupt the trial of the case
because no trial date  has yet been set"); Zawicki
v. Armstrong, No. 16-453, 2017 WL 6206290, at *4 (M.D.
Pa. Dec. 8, 2017) ("We find that the [moving party] will
not be unduly prejudiced. No trial date has been scheduled
and [the non-producing party] indicate[s] that they would not
object to [the moving party] conducting any additional
discovery he deems appropriate for the late-disclosed
information."); Ely v. Cabot Oil & Gas
Corp., No. 09-2284, 2014 WL 1276487, at *8 (M.D. Pa.
Mar. 27, 2014) ("[T]rial in this matter has not been
scheduled, and small modifications to the pretrial schedule
can be made that are tailored to alleviating the prejudice to
the Defendants while avoiding the exclusion of ...