United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. RUSHFELT, U.S. MAGISTRATE JUDGE
the Court is Plaintiffs' Motion to Strike Defendants'
Experts (ECF 59). Plaintiff originally asked the Court to
strike the following expert witnesses: Wallace James, Steven
Arndt, Steve McKinzie, Robert Cargill, Ray Smegal, Rick
Hunter, and Allan Grimes. After discussion among the parties,
Plaintiff agreed to withdraw the motion to strike as it
relates to Wallace James, Steven Arndt, and Steve
McKinzie. The Court now considers Plaintiff's
motion as it relates to Robert Cargill, Ray Smegal, Rick
Hunter, and Allan Grimes. For the reasons set forth below, the
Court denies the motion without prejudice.
Relevant Procedural Background
parties jointly requested and were granted revisions to the
scheduling order. Under the revised scheduling order,
Plaintiff's experts were to be disclosed by November 28,
2017, and Defendants' experts were to be disclosed by
January 29, 2018. The deadline for completion of discovery
was April 24, 2018. Motions challenging admissibility of
expert testimony were to be filed by May 29, 2018.
April 5, 2018, Plaintiff filed the present motion, arguing
Mr. Cargill was a retained expert required to submit a
written report and failed to do so. Plaintiff further argued
that although Mr. Smegal, Mr. Hunter, and Mr. Grimes were
non-retained experts who were not required to submit a
report, Defendants failed to provide the subject matter on
which the witnesses are expected to testify or a summary of
the facts and opinions to which they are expected to testify
as required by Fed.R.Civ.P. 26(a)(2)(c).
April 6, 2018, Defendant ProSlide Technology, Inc. (ProSlide)
served supplemental exhibits to its expert witness
disclosure, namely a written report from Mr.
Cargill. In its response to the pending motion,
ProSlide said though it timely disclosed Mr. Cargill as an
expert witness, Mr. Cargill did not prepare a written report
until later, and the report was served on all the parties on
April 6, 2018. ProSlide also incorrectly alleged that
Plaintiff wanted Mr. Smegal, Mr. Hunter, and Mr. Grimes to
submit written reports though not required to under
Fed.R.Civ.P. 26. ProSlide failed to address Plaintiff's
actual argument that it did not provide the subject matter on
which these witnesses are expected to testify or a summary of
the facts and opinions to which they are expected to testify.
Defendants Great Wolf Lodge of Kansas City, LLC and Great
Wolf Resorts, Inc. (the Great Wolf Defendants) did not
address the three non-retained experts in their
Rule of Civil Procedure 26(a)(2) discusses requirements for
disclosure of expert testimony. It splits expert witnesses
into two categories: witnesses who must provide a written
report, and witnesses who do not provide a written report. A
witness must provide a written report “if the witness
is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party's
employee regularly involve giving expert
testimony.”Thus, an expert witness who is not retained
or specially employed is not required to provide a written
report. His or her disclosure must instead state the subject
matter on which the witness is expected to present evidence
and a summary of the facts and opinions to which the witness
is expected to testify.
party fails to provide information or identify a witness as
required by Fed.R.Civ.P. 26(a), “the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is
harmless.”In determining whether a Rule 26(a)
violation is harmless, the Court considers the following
factors: “‘(1) the prejudice or surprise to the
party against whom the testimony is offered; (2) the ability
of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4)
the moving party's bad faith or
willfulness.'” The burden to establish that a
failure was harmless is on the party who failed to make the
here provide no justification for their failure. ProSlide in
fact provides no justification at all, simply saying Mr.
Cargill “has subsequently prepared a detailed report
which has now been served and made available to all
parties.” This does not explain why Mr. Cargill
had not prepared a report when ProSlide's designations
were due nearly three months earlier.
any justification offered for Defendants' failure to
comply with Fed.R.Civ.P. 26(a)(2)(C) in regard to the
non-retained witnesses. ProSlide focuses its response on
explaining why these witnesses are not required to submit a
report, though Plaintiff did not argue that they should. The
response of Great Wolf Defendants does not even mention these
witnesses. The Court considers the above factors to determine
if these failures are harmless.
does not argue that he is prejudiced by the delayed report of
Mr. Cargill. Plaintiff says only that the “violation of
Rule 26(a)(2) is not substantially justified or harmless,
” but does not explain what the harm is. Although the
report was submitted almost three months late, Plaintiff does
not contend in his reply memorandum that the report was
insufficient or that he is harmed in any way by receiving it
late. He has received it seven months before
trial.Plaintiff does not allege, nor does the
Court find, any bad faith by ProSlide in submitting Mr.
Cargill's report late. Accordingly, the Court denies the
motion to strike as to the report of Mr. Cargill.
the non-retained witnesses, Mr. Smegal, Mr. Hunter, and Mr.
Grimes, the Court finds their disclosures are lacking and
fail to comply with Fed.R.Civ.P. 26(a)(2)(C). Plaintiff does
not explain how he is prejudiced. Because the trial date is
still five months away, the Court finds there is sufficient
time for Defendants to cure these defects. Therefore, the
motion to strike as to Mr. Smegal, Mr. Hunter, and Mr. Grimes
is denied without prejudice. Defendants shall supplement
their disclosures of Mr. Smegal, Mr. Hunter, and Mr. Grimes
in accordance with Fed.R.Civ.P. 26(a)(2)(C) within ten (10)
days of the date of this order. The supplemented disclosures
must include the subject matter on which each witness is
expected to present evidence and a summary of the facts and
opinions to which each witness is expected to testify.
IS THEREFORE ORDERED BY THE COURT that
Plaintiffs' Motion to Strike Defendants' Experts (ECF
59) is denied without prejudice. Defendants shall supplement
their disclosures regarding Mr. Smegal, Mr. Hunter, and Mr.
Grimes to ...