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Osterhouse v. Grover

July 20, 2006


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


This matter is before the Court on the Motion to Preclude Discovery and Bar Expert Testimony of Plaintiff' 'Retained Experts' filed by the defendants, Gregory L. Grover, M.E.M.R. Inc., and Transguard Insurance Company of America, Inc., on February 9, 2006 (Doc. 168)*fn1 . For the reasons set forth below, the motion is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.


This motion is one part of a dispute between the parties concerning the plaintiffs' expert disclosures that were the subject of various motions and a hearing on February 28, 2006. This particular motion concerns the plaintiffs' disclosure of retained expert witnesses, Leigh Berry, Joseph B. Shumway, Bruce Edward Enz, Thomas G. Petroff, Kenneth McMannis, and Stan Fincher. The defendants generally argue that for each of these experts, either the disclosure and/or the expert report is deficient. The defendant further seeks an Order limiting these experts to the opinions outlined in their reports.


Federal Rule of Civil Procedure 26(a)(2)(B) provides:

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Rule 37(c)(1) goes on to provide that "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." This Court's broad discretion over discovery matters is reviewed for an abuse of discretion. Spiegla v. Hull, 371 F.3d 928, 943-944 (7th Cir. 2004); Patterson v. Avery Dennison Corporation, 281 F.3d 676, 681 (7th Cir. 2002).

The defendants' general argument for exclusion of these experts are that their reports do not indicate that their opinions are held to "a reasonably degree of certainty," the reports are incomplete (especially with respect to the issue of causation, of the accident and the resulting damages) and do not contain all of the opinions they may expressed at trial, and that the experts are unqualified to offer an expert opinion. The defendants seek to either strike these expert reports or limit the experts' testimony to those opinions outlined in their respective reports. The plaintiffs offer a two paragraph response in which they state that the reports provided are full and complete and that they comply with the requirements of Rule 26(a)(2)(B).

The defendants' arguments that the experts' opinions are not held to a reasonable degree of certainty and that they are otherwise unqualified tread into considerations that are usually brought before the trial court pursuant to a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), motion in limine. These arguments also impinge upon issues of proof that are generally left to the consideration of the trial court. The defendants' arguments include issues regarding the sufficiency of the experts' qualifications, the sufficiency of the actual opinions expressed, and/or the sufficiency of the bases of these opinion. These arguments necessarily involve an analysis of the evidentiary value of the opinions and the ability of these witnesses to provide expert testimony at trial. Such arguments are more properly addressed to the trial court. Thus, to the extent that the defendants contend that the experts' opinions are inadmissible pursuant to the Federal Rules of Evidence, such arguments will not be considered by this Court. Rather, this Court's consideration of the plaintiffs' disclosures is limited to an analysis of whether those disclosures are consistent with Rules 26 and 37.

Rule 26(a)(2)(B) states, in part, that an expert report "shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore . . . " (emphasis added). The terms of the Rule, "shall" and "all," leave no room for waffling. In Salgado by Salgado v. General Motors Corporation, 150 F.3d 735 (7th Cir. 1998), the Seventh Circuit Court of Appeal succinctly stated that:

Rule 26(a) expert reports must be "detailed and complete." A complete report must include the substance of the testimony which an expert is expected to give on direct examination together with the reasons therefor. The report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources. Expert reports must not be sketchy, vague or preliminary in nature. Disclosures must not be used as a means to extend a discovery deadline. Expert reports must include "how" and "why" the expert reached a particular result, not merely the expert's conclusory opinions.

Id. at 742 n.6 (citations omitted).

Thus, in Nurtrasweet Company v. X-L Engineering Co., 227 F.3d 776 (7th Cir. 2000), the Circuit Court approved a District Court ruling pursuant to Rule 37 that limited an expert's testimony to the opinions outlined in the original expert report as no supplemental report was filed prior to the expert report deadline. ...

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