United States District Court, N.D. Illinois, Western Division
October 13, 2005.
WYNN L. SMITH, et al, Plaintiffs,
RONALD M. KUNTZELMAN, Defendant.
The opinion of the court was delivered by: P. MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on a series of Plaintiffs' and
Defendant's Motions that all focus on problems related to the
disclosure of Defendant's Rule 26(a)(2) expert, Dr. Soriano. For
the reasons stated below, the court finds the following: (1)
Plaintiffs' Motion to Strike Opinions and Reports of Dr. Soriano
(or Compelling Production of a Complete Testimony List) is denied
in part and granted in part; (2) Plaintiffs' Motion to Extend
Time for Discovery is denied, except as provided in the
Memorandum Opinion and Order; (3) Defendant's Motion to Strike is
denied; (4) Defendant's Motion to Quash is denied; and (5)
Defendant's Motion to Disqualify is denied
On July 20, 2005, which was the court's established fact
discovery cut-off date,*fn1 the court established a
Scheduling Order for expert disclosures. Plaintiffs waived
disclosure of an expert. Defendant was given until September 2, 2005 to disclose an expert
and to produce Rule 26(a)(2) expert disclosures. Time to depose
Defendant's expert was not established as Plaintiffs' counsel
waived this option.
On August 12, 2005, Defendant disclosed Dr. Soriano as a Rule
26(a)(2) expert. Though fact discovery was closed, Plaintiffs
sent a Request for Production with regard to Dr. Soriano on
August 16, 2005 and a Supplemental Request on September 16, 2005.
Apparently, Plaintiffs were dissatisfied with Dr. Soriano's
expert disclosures, as the first Request for Production largely
requested materials required to be disclosed by Rule 26(a)(2). In
addition, Plaintiffs requested copies of 1099 forms received by
Dr. Soriano for compensation paid to him by State Farm Mutual
Insurance Company. Defendant apparently refused to produce the
1099's without a court order. Plaintiffs' Supplemental Request
again requested 1099 forms issued to Dr. Soriano, but expanded
the request beyond State Farm to other entities.
In a flurry of activity preceding the court's Final Pre-Trial
Conferences set for September 21, 2005 and October 7, 2005,
Plaintiffs moved to extend time for discovery and strike Dr.
Soriano's expert disclosure. Defendant moved to strike
Plaintiffs' Supplemental Production Requests (and quash
Plaintiffs' pursuit of the 1099's) and moved to disqualify
Plaintiffs' lead counsel, Mr. Clark, stating Mr. Clark had
previously represented Defendant's expert, Dr. Soriano. The court
heard oral arguments on the motions on October 7, 2005.
It is impossible to untangle these discovery motions.
Plaintiffs should have moved to Strike the expert report of Dr.
Soriano from the start, but instead Plaintiffs pursued the
missing information from the report by propounding untimely
production requests that sought materials not required by Rule 26(a)(2), i.e., Dr. Soriano's 1099's. Dr.
Soriano's report is undeniably deficient under Rule 26(a)(2)(B)
because it fails to fully disclose a list of cases in which
Soriano had "testified at trial or by deposition within the
preceding four years," as required by Rule 26(a)(2)(B).*fn2
See, e.g., Palmer v. Rhodes Machinery, 187 F.R.D. 653, 656
(N.D. Okla. 1999) (quoting Nguyen v. IPB, Inc., 162 F.R.D. 675,
681 (D. Kan. 1995) ("The requirements of Rule 26(a) are mandatory
as to any expert retained to testify. If the expert is unable or
unwilling to make the disclosures he should be excluded as a
possibility for retention as an expert witness in the case").
Nonetheless, Plaintiffs remain willing to take production of
1099's in lieu of the required Rule 26(a)(2)(B) case
Ordinarily, the court would not allow Plaintiffs' untimely
production request for materials such as 1099's, which are
outside the scope of Rule 26(a)(2)(B). In the court's view, the
Rule provides sufficient discovery, the limitation cuts down on
discovery costs, and the parties have the opportunity to depose
the expert and clear up any unsettled matters at a later time.
This case, however, presents a unique situation as Plaintiffs
have waived the opportunity to depose Defendant's expert, and
have crafted an alternate means of discovering required
Since it is the preference of the court to keep this case
moving towards trial rather than striking Defendant's expert
report and starting expert discovery anew, the court accepts Plaintiffs' alternative and denies Defendant's Motion to Quash
Plaintiffs' Pursuit of Dr. Soriano's 1099's and Defendant's
Motion to Strike Plaintiffs' Second Supplemental Request for
Production and Interrogatories. Defendant is ordered to produce
Dr. Soriano's 2001 and 2004 1099's by November 11, 2005. Parties
are to submit an Agreed Protective Order to the court regarding
production of 1099's by November 4, 2005. Plaintiffs' Motion to
Extend Time for Discovery is denied except as to the production
of Dr. Soriano's 2001 and 2004 1099's by November 11, 2005.
In the alternative to producing Dr. Soriano's 1099's, Defendant
may produce an expert report in complete compliance with Rule
26(a)(2)(B) by November 11, 2005. Accordingly, Plaintiffs' Motion
to Strike Opinions of Reports of Dr. Soriano (or Compelling
Production of a Complete Testimony List) is denied in part and
granted in part. As the court is also of the general belief that
two wrongs do not make a right, the court confines this ruling
to the unique circumstances of this case. The court will not
hesitate to strike inadequate expert reports and exclude opinion
testimony in future cases, or in this case, if Plaintiffs and
Defendant fail to comply with the court's Order.
The only remaining motion is Defendant's Motion to Disqualify
Attorney Clark based on Clark's previous representation of Dr.
Sariano. Based on Attorney Clark's Affidavit filed with the court
on September 29, 2005, the court detects no conflict of interest
arising out of the prior representation of Soriano. Moreover, the
court notes that Dr. Sariano is not a party to this case. He is a
named Rule 26(a)(2) expert named by Defendant with full
knowledge of Attorney Clark's past representation of Dr. Soriano.
The court cannot allow parties to "conflict out" opposing counsel
simply by selecting an expert. The court would disqualify Dr.
Soriano from testifying as Defendant's expert before it would disqualify lead
counsel in this case. Defendant's Motion to Disqualify is denied.
For the foregoing reasons, Plaintiffs' Motion to Strike
Opinions and Reports of Dr. Soriano (or Compelling Production of
a Complete Testimony List) is denied in part and granted in part.
Defendant is to produce Dr. Soriano's 2001 and 2004 1099's or a
complete 26(a)(2) report by November 11, 2005. Plaintiffs' Motion
to Extend Time for Discovery is denied, except as to the
production of 1099's or a complete 26(a)(2) report by November
11, 2005. If 1099's are to be produced by Defendant, an Agreed
Protective Order is to be submitted to the court by November 4,
2005. Defendant's Motion to Quash and Defendant's Motion to
Strike are denied. Defendant's Motion to Disqualify is denied.
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