The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Defendants' Motion for an
Order to Show Cause and to Bar Plaintiff's Expert Witness.
On December 2, 2004, by agreement of the parties, discovery was
ordered closed on April 30, 2005, and trial scheduled for
September 12, 2005. On May 26, 2005, Defendants' Joint Motion to
Modify the Discovery Schedule was granted and discovery was
extended to August 12, 2005. On August 9, 2005, the Court, with
the agreement of the parties, altered certain discovery dates,
including that Plaintiff's expert witness' report was to be
produced by September 22, 2005, and the expert's deposition was
to take place on or before August 31, 2005. Later that same day,
Plaintiff filed an emergency motion to reset the just agreed to
discovery schedule because Plaintiff's expert would not be able
to produce her report by August 22, 2005. On August 22, 2005, the
Court granted Plaintiff's emergency motion and allowed Plaintiff
until September 5, 2005 to produce her expert witness' report and until September 12, 2005 for the expert's
deposition. The trial was also rescheduled to October 3, 2005 to
accommodate Plaintiff's discovery extension request.
Despite Plaintiff's representation that she could not produce
her expert's report by August 22, 2005, Plaintiff did produce
some materials purporting to be her expert's report on August 22,
2005. However, the report did not include any supporting
materials, contained no factual basis to support the expert's
conclusions, and failed to provide the testing materials for
tests that were identified as being administered to Plaintiff on
July 22 and 23, 2005. Plaintiff also informed Defendants that her
expert was only available to be deposed on September 9, 2005.
On August 24, 2005, Defendants requested that Plaintiff produce
all tests, test questions, Plaintiff's answers, scoring scales,
test reports, and computer analyses of Plaintiff's responses to
each test or scale administered to Plaintiff. Plaintiff did not
respond to the request. On September 6, 2005, Plaintiff started
sending Plaintiff's "supplemental" expert report and supporting
materials to Defendants via facsimile. Over the course of the
day, Defendants received sections of the expert's report, which
amounted to over eighty pages. Certain pages received were
completely or partially illegible. After receiving complaints
from Defendants, Plaintiff attempted to e-mail the documents.
Certain pages remained completely or partially illegible because
Plaintiff's own copy was illegible. Plaintiff's expert's
supplemental report was vastly different from the initial report,
including a change in Plaintiff's diagnosis and an increase in
the report from one-and-one-half pages in length to almost thirty
pages in length. Plaintiff also indicated that Plaintiff would
respond to the request of testing materials by having her expert
forward the raw testing data directly to Defendants' experts. As
of September 8, 2005, no material was received by Defendants'
experts. The morning of September 8, 2005, Defendants confirmed
Plaintiff's expert's deposition would proceed the morning of
September 9, 2005. That same day, Plaintiff attempted to have the
raw data delivered to Defendants' experts via Federal Express.
The documents arrived at approximately noon on September 8, 2005;
however, the documents were deemed "undeliverable" and were not
delivered to the Defendants' experts. At approximately 12:30 p.m.
on September 8, 2005, Defendants sent an e-mail to Plaintiff's
counsel notifying her that the deposition was being cancelled
because the test results had not been received. The raw data was
delivered to Defendants at approximately 12:00 noon on September
9, 2005, three hours after Plaintiff's expert's deposition was
scheduled to begin.
Federal Rule of Civil Procedure 37(b)(2) provides, in pertinent
If a party . . . fails to obey an order to provide or
permit discovery . . . the court in which the action
is pending may make such orders in regard to the
failure as are just, and among others the following:
* * *
(B) An order refusing to allow the disobedient party
to support or oppose designated claims or defenses,
or prohibiting the party from introducing designated
matters in evidence.
* * *
(D) In lieu of any of the foregoing orders or in
addition thereto, an order treating as contempt of
court the failure to obey any orders except an order
to submit to a physical or mental examination.
Furthermore, the Court has inherent power to "fashion . . .
appropriate sanction[s] for conduct which abuses the judicial
process." Chambers v. NASCO, Inc., 501 U.S. 32
, 44-45 (1991)
(Chambers). This inherent power must be exercised with
restraint and discretion. See Chambers, 501 U.S. at 44. Defendants seek to bar Plaintiff's expert from testifying at
trial for Plaintiff's failure to comply with the Court's Order.
Plaintiff argues that sanctions are not appropriate because she
has complied with the Court's Orders and because the only reason
Defendants' expert did not receive the raw data on September 8,
2005, was because it was "undeliverable" by Federal Express. The
above facts demonstrate that Plaintiff has not complied with the
Court's Order as to the production of expert reports by the dates
set by Order of the Court. This failure to comply occurred even
after the Court granted Plaintiff additional time to produce such
materials after she had just agreed to a different time table.
Furthermore, even if the raw materials had been deliverable on
September 8, 2005, Plaintiff still would have been in violation
of the Court's Order that they be produced by September 5,
Accordingly, the sanction of prohibiting the
Plaintiff's expert from testifying at trial is appropriate. See
Equal Employment Opportunity Comm'n v. Kenosha Unified Sch. Dist.
No. 1, 620 F.2d 1220
, 1226 (7th Cir. 1980) (precluding testimony
is a permissible sanction for a party's failure to comply with
Plaintiff also argues that Illinois law and APA ethics prohibit
Plaintiff's expert from releasing the raw data to directly to
Defendants; therefore, the materials had to be produced directly
to the Defendants' experts. Plaintiff had not previously informed
the Court that production of the materials requested might not be
possible due to Illinois law or APA ethical restraints, as she
now contends. Furthermore, Plaintiff's inability to produce the
materials directly to Defendants does not excuse Plaintiff's
failure to produce the documents to Defendants' experts after the
date set forth in the Court's Order. Defendants also seek to a Rule to Show Cause issue why
Plaintiff not be held in contempt for her failure to comply with
the Court's Order. Holding Plaintiff in contempt for failing to
comply with the Court's Order is not an appropriate sanction as
Plaintiff has failed to comply with the Court's deadlines that
have since past. See Cunningham v. Hamilton County, Ohio,
527 U.S. 198, 207 (1999) (civil contempt is designed to force
compliance with a court order and acts prospectively).
For the foregoing reasons, Defendants' Motion for an Order to
Show Cause is denied and Defendants' Motion to Bar Plaintiff's
Expert Witness is granted.
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