The opinion of the court was delivered by: DAVID HERNDON, District Judge
Now before the Court is Plaintiff's Appeal Pursuant to Local
Rule 73.1 of Magistrate Proud's Order of March 14, 2005 (Doc. 49)
granting in part and denying in part Plaintiff's Motion for Leave
to Extend Disclosure of Experts and to Conduct Discovery, or, in
the Alternative, Plaintiff's Motion for Leave to Continue the
Trial Setting. Specifically, Plaintiff appeals the portion of
Magistrate Proud's March 14, 2005 Order denying him leave to
disclose Dr. Wayne Stillings ("Dr. Stillings") and Dr. Matthew
Gornet ("Dr. Gornet") as additional expert witnesses, and denying
his alternative request to continue the trial date (Doc. 47).
Defendant opposes Plaintiff's appeal and asks the Court to affirm
and adopt Magistrate Proud's March 14, 2005 Order (Doc. 54).
For the reasons set forth below, the Court sets aside the
portion of Magistrate Proud's March 14, 2005 Order denying
Plaintiff leave to disclose additional expert witnesses and denying his request to continue the trial
date. In order to ensure adequate time for the parties to
complete discovery given the late disclosure of two of
Plaintiff's experts, the Court continues the presumptive trial
month from July 2005 to November 2005. Magistrate Proud should
enter a new scheduling order that allows additional time for
discovery after consultation with the parties.
The dispute between the parties boils down to whether
Plaintiff's additional experts, Dr. Gornet and Dr. Stillings,
should be excluded because of Plaintiff's untimely
disclosure.*fn1 Magistrate Proud, without citation to any
legal authority, found that Plaintiff's experts should be
excluded. Because Plaintiff appeals a non-dispositive matter, the
Court must reconsider the matter and set aside any portion of
Magistrate Proud's order found to be clearly erroneous or
contrary to law. S.D. ILL. LOCAL RULE 73.1(a).
FEDERAL RULE OF CIVIL PROCEDURE 37(c) guides the Court's
analysis, and provides: "A party that without substantial
justification fails to disclose information required by Rule
26(a) or 26(e)(1) . . . is not, unless such failure is harmless,
permitted to use as evidence at a trial . . . any witness or
information not so disclosed." FED. R. CIV. P. 37(c)(1). In
other words, RULE 37 restrains courts from excluding relevant
testimony when a party's failure to disclose a witness is
substantially justified or harmless. See McCarthy v. Option One Mortg. Corp.,
362 F.3d 1008, 1012 (7th Cir. 2004); Sherrod v. Lingle, 223 F.3d 605,
612 (7th Cir. 2000). Thus, a court cannot impose the exclusion
sanction unless it finds that the party's failure to comply with
RULE 26(a) was both unjustified and harmful to the other party.
See Sherrod, 223 F.3d at 612.
Plaintiff points out he is receiving current and ongoing
treatment from both Doctor Gornet and Doctor Stillings, including
upcoming surgery (microdiscectomy and anterior cervical fusion
C3-4, C4-5, and C5-6) scheduled for July 13, 2005 (Doc. 68).
Plaintiff argues he is justified in the late disclosure because
he did not begin treatment with these doctors until after the
expert cutoff due to circumstances out of his control. Plaintiff
tells the Court, for the first time, he was referred to Dr.
Gornet in February 2005 after his original treating doctor, Dr.
Schreiber, relocated to Florida. Plaintiff further argues that
the late disclosure is harmless given Defendant had knowledge of
Plaintiff's ongoing orthopedic and psychiatric problems.
Defendant strongly opposes Plaintiff's untimely disclosures
arguing, among other things, that interjecting new medical
testimony into the case at this late date is highly prejudicial
to the defense.
While the Court is sympathetic to Defendant's position, the
Court finds that Plaintiff's untimely disclosure was justified.
First, the evidence before the Court clearly shows that Plaintiff
did not begin receiving treatment from Doctors Gornet and
Stillings until after the expert disclosure cutoff due to
circumstances out of his control. Second, the evidence shows that
Plaintiff is receiving current and ongoing treatment from these doctors and is awaiting surgery in July 2005. Third,
the Court observes that Plaintiff filed his original motion to
disclose these experts on February 9, 2005 shortly after learning
that he was to receive additional treatment by these doctors. Put
simply, the Court finds that the testimony of Dr. Gornet and Dr.
Stillings should not be excluded because of Plaintiff's untimely
disclosure. In the future the Court strongly recommends that
Plaintiff provide all information to the Magistrate Judge so that
he may make an informed and reasoned ruling.
In sum, the Court REVERSES in part Magistrate Proud's March
14, 2005 Order and SETS ASIDE the portion of the March 14, 2005
Order denying Plaintiff leave to disclose additional expert
witnesses and denying his request to continue the trial date
In order to ensure adequate time for the parties to complete
discovery given the late disclosure of two of Plaintiff's
experts, the Court CONTINUES the presumptive trial month from
July 2005 to November 2005. The Court DIRECTS Magistrate
Proud to enter a new scheduling order that allows additional time
for discovery after consultation with the parties.