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Mason v. Smithkline Beecham Corp.

March 26, 2007

BONNIE J. MASON AND, WILLIAM J. MASON, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF TRICIA M. MASON, DECEASED, PLAINTIFFS,
v.
SMITHKLINE BEECHAM CORPORATION, D/B/A/ GLAXOSMITHKLINE, A PENNSYLVANIA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

Before the Court is Defendant's corrected Motion to Strike Plaintiffs' Untimely Supplemental Expert Report (d/e 55).*fn1 For the reasons below, the Court grants the motion in part and denies the motion in part.

LEGAL STANDARD

Fed. R. Civ. P. 26(a)(2) requires a party to disclose the identity of persons who may be called to testify as experts, along with a detailed written report, signed by the expert, containing: a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered . . ; any exhibits to be used as a summary of or support for the opinion . . . Fed. R. Civ. P. 26(a)(2)(B). Rule 26(a) expert reports cannot be "sketchy, vague or preliminary in nature." Salgado v. General Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998)(also recognizing that report must include "all exhibits to be used as a summary of or support for the opinions"); Federal Rule of Civil Procedure 26(a)(2) Advisory Committee Notes, 1993 Amendments ("The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert's opinion."). "Disclosure must not be used as a means to extend a discovery deadline." Salgado, 150 F.3d at n. 6.

Expert disclosures must be supplemented "when required under subdivision [26] (e)(1)." Rule 26(e) requires disclosures to be "supplement[ed] or correct[ed] . . . to include information thereafter acquired if: the party learns that in some material respect the information disclosed is incomplete or incorrect . . . With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's [pretrial disclosures] are due.

Fed. R. Civ. P. 26(e)(1); Federal Rule of Civil Procedure 26(a)(e) Advisory Committee Notes, 1993 Amendments ("changes in the opinions expressed by the expert whether in the report or at a subsequent deposition are subject to a duty of supplemental disclosure . . .").

Fed. R. Civ. P. 37(c)(1) applies when a party has failed to meet its disclosure duties:

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, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure . . . "The sanction of exclusion is 'automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.'" Nutrasweet Co. v. X-L Engineering Co., 227 F.3d 776, 785-86 (7th Cir. 2000)(quoted cite omitted); Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000)(party's failure under Rule 26(a) must be both unjustified and harmful).

The District Court's decision is reviewed for abuse of discretion, but the Court is mindful that, "[d]epriving the parties of a merits disposition is serious business." Salgado, 150 F.3d at 740; Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000). Rule 37(c)(1) sanctions "must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction." Salgado, 150 F.3d at 740.

BACKGROUND

Dr. Glenmullen's first expert report was timely produced on October 5, 2006 (the "first report"), the deadline established by the Court's September 5, 2006, agreed, amended scheduling order (d/e 36). The deadline for deposing Dr. Glenmullen was extended to January 12, 2007, pursuant to the Court's second amended scheduling order, also requested and agreed to by the parties. (d/e 44, 11/15/06 order). The third amended, agreed scheduling order extended Dr. Glenmullen's deposition deadline to February 9, 2007, as well as extending other deadlines. (d/e 51, 1/16/07 order). The joint motion asking for the extension of Dr. Glenmullen's deposition deadline stated:

"Because of information not available at the time of Dr. Glenmullen's October 5, 2006 report, counsel for Plaintiffs has notified counsel for Defendant that Dr. Glenmullen will be supplementing his report. In the interest of conserving resources and to avoid multiple depositions, the parties agreed to reschedule Dr. Glenmullen's deposition for a time no later than February 9, 2007." (d/e 50).

Dr. Glenmullen's authored another expert report on January 15, 2007 (the "second report"). Defendant moved to strike the second report on February 6, 2007, and filed a corrected motion to strike the next day, which is the motion now before the court. (d/e 55). Dr. Glenmullen's first report is docketed in its entirety as #59 (initially under seal and then unsealed). His second report is docketed in its entirety as #60, portions of which remain under seal.

ANALYSIS

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