United States District Court, N.D. Illinois, Eastern Division
PARAMOUNT MEDIA GROUP, INC., an Illinois corporation, Plaintiff,
VILLAGE OF BELLWOOD, an Illinois municipal corporation, and IMAGE MEDIA, an Illinois corporation, Defendants.
Jorge Alonso, Judge
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, MAGISTRATE JUDGE
The defendant Image Media has moved to bar the testimony of three expert witnesses of the plaintiff Paramount Media Group pursuant to Fed.R.Civ.P. 26(a)(2)(B) and 37(c)(1).
Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Along with the disclosure of the identity of its experts, a party must also submit a written report, “prepared and signed” by the expert, which contains the following information:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Failure to comply with the disclosure requirements of Rule 26(a) results in automatic and mandatory exclusion of the proffered witness “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). See generally, Novak v. Board of Trustees of Southern Illinois University, 777 F.3d 966, 972 (7th Cir. 2015). Courts look to several factors when deciding if non-compliance with Rule 26(a) is harmless, including prejudice or surprise, the ability to cure the prejudice, the likelihood of disruption at trial, and bad faith or willfulness. See Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir.2012). District courts have broad discretion in evaluating whether a Rule 26(a) violation is substantially justified or harmless. See Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 901–02 (7th Cir.2007); David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003).
Mr. Quas, Paramount’s CEO, offers an opinion as to the net present value of the income a billboard of the type at issue here – a 20' x 60' vinyl sign – should produce. He puts that figure at $3, 611, 673. He also provides an opinion as to the present value of the income a digital display billboard of the same size: $13, 993, 808. He says that he used a spreadsheet to arrive at his opinion, which he attaches to his report.
Image Media argues that Mr. Quas failed to disclose that he is not the true author of his report. That’s certainly one way to put it because, as we shall see, Mr. Quas doesn’t know much about the number crunching that underlies “his” opinion. The real problem here is that Mr. Quas contributed so little to the formulation of “his” opinion that he is, to use Judge Posner’s phrase, no more than a “mouthpiece” for the person who did the calculations, came up with the spreadsheet and, ultimately, the opinion regarding the present value of the future income of the two types of signs. That is not permitted. See Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 613-14 (7th Cir. 2002); TK–7 Corp. v. Estate of Barbouti, 993 F.2d 722, 734 (10th Cir.1993). See also the discussion in Loeffel Steel v. Delta Brands, 387 F.Supp.2d 794, 808 et seq. (N.D.Ill.2005).
At his deposition, Mr. Quas explained that all the work was done by David Wiegman. (Quas Dep., at 94). Mr. Quas has never calculated present value of future income of a billboard, and he relied entirely on Mr. Wiegman to select and input the discount rate, input the data, and create the spreadsheet. (Quas Dep., at 100). Mr. Quas cannot explain where the figures in the spreadsheet came from – other than from Mr. Wiegman, of course:
Q: Okay, what’s the number . . . 245, 000 in the parenthesis?
A: I don’t know.
Q: The 750, 000 number that's in parenthesis down by cash flow down at the bottom of the page –
Q: – is that for the construction cost of the digital display?
A: I believe so. It's not indicated –
Q: The whole sign structure?
Q: Do you know what that's for or are ...