The opinion of the court was delivered by: Reagan, District Judge:
In January 2005, Custom Foam Works, Inc., (CFW) brought a breach of contract and common law fraud lawsuit against Hydrotech Systems, Ltd., and Aquatic Development (collectively, Defendants). In the contract, CFW agreed to manufacture and deliver approximately 32,232 square feet of custom foam wall paneling to a project site in Virginia. As consideration for CFW's performance, Defendants agreed to pay CFW $508,103.20. CFW claims that Defendants unilaterally terminated the contract and failed to provide CFW with payment as agreed in the contract. On June 11, 2010, the Court consolidated into this action the later-filed action, Hydrotech Systems, Ltd v. Tippett, Case No. 10-cv-0239-MJR.
A Scheduling and Discovery Order proposed by the parties and entered by Magistrate Judge Proud imposed a July 9, 2010 discovery cut-off and a July 23, 2010 dispositive motion deadline (see Doc. 18). That order also set the timeline to disclose expert witnesses and written reports pursuant to Federal Rule of Civil Procedure 26(a)(2). However, during the status conference on June 23, 2010, the Court found that consolidation of the cases had rendered the Scheduling and Discovery Order unworkable (Doc. 33). Consequently, the Court rescheduled trial and advanced the discovery deadline to December 28, 2010, and the dispositive motion deadline to January 7, 2011. Id.
On December 28, 2010, CFW designated its expert witness Nancy Matheny. CFW asserts that it timely supplemented its disclosure by providing Matheny's report on January 4, 2011. On January 28, 2011, CFW supplemented Matheny's report with pages that it indicated were inadvertently left out of the report. On February 15, 2011, Defendants filed a motion to strike CFW's expert witness (Doc. 69), which the Court denied on March 10 (Doc. 81). On March 22, the Court also denied Defendants' motion to reconsider (Docs. 82, 84). On April 29, 2011, Defendants disclosed rebuttal expert Ryan Clark. (Doc. 88, Exhibit B).
Now before the Court is CFW's motion to strike Defendants' untimely expert opinion witness disclosure and to bar Defendants from presenting expert testimony at trial (Doc 88).
Pursuant to Rule 26(a)(2) a party must disclose to the other parties the identity of any witness it may use at trial to present evidence and must make these disclosures at the times and in the sequence that the court orders. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(B) requires expert witness disclosures to include, inter alia, a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(D) also requires that, absent a court order, a disclosure must be made "(i) at least 90 days before the date set for trial or for the case to be ready for trial or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure." Fed. R. Civ. P. 26(a)(2)(D).
As the Court stated in its June 23, 2010, Order (Doc. 33), consolidation of the cases had rendered the Scheduling Order, then in place, unworkable. As stated before by this Court it would be against common sense to assume that the Court would advance the discovery and dispositive motion deadlines more than five months while at the same time requiring the parties to disclose expert witnesses in accordance with a scheduling order deemed unworkable.
Defendants maintain that in the interests of fairness and substantial justice, they should be permitted to present testimony from their rebuttal expert at trial. This Court does not agree. Defendants could have asked for a Rule 16 conference to obtain an amended scheduling and discovery order after the consolidation of the cases had rendered the prior Scheduling Order unworkable, but they did not. With neither a stipulation nor a court order in place pursuant to Rule 26(a)(2)(D), the date by which expert rebuttal witnesses had to be disclosed defaulted to 30 days after the other party's disclosure. Defendants disclosed their rebuttal witness on April 29, 2011, more than three-and-one-half months after CFW disclosed its expert and provided her report.
Defendants neither timely disclosed their rebuttal expert, nor sought an extension of time for disclosing him, nor sought additional time to depose CFW's expert witness. Even if Defendants' deadline were tolled while the Court decided their motion to strike and subsequent motion to reconsider, Defendants still waited more than 30 days after the Court denied reconsideration on March 22, 2011, to disclose their expert.
Rule 37 provides in pertinent part that if a party fails to identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that witness to supply evidence at a trial "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The determination of whether a late expert witness disclosure should be allowed is entrusted to the district court. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The Seventh Circuit has set forth four factors to guide the district court's analysis: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to ...