United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
the Court is Plaintiffs' Motion for Leave to File an
Amended Disclosure on Non-Retained Expert Witness (Doc. 239).
Defendants filed responses in opposition (Docs. 243, 244).
The Court issued its ruling on the record on April 28, 2017
(Doc. 248). For the following reasons, the motion is GRANTED.
26(a)(2)(C) requires parties to disclose the subject matter
on which non-retained expert witnesses are expected to
testify, along with a summary of the facts and opinions to
which the expert is expected to testify. To ensure compliance
with these discovery requirements, Rule 37 provides that
“if a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness… unless the
failure was substantially justified or is harmless.”
determination as to whether a Rule 26(a) violation is
justified or harmless is within the discretion of the
district court. David v. Caterpillar, 324 F.3d 851,
857 (7th Cir. 2003). In making this determination,
the Court should include the following factors in its
(1) The prejudice or surprise to the party against whom the
evidence is offered;
(2) The ability of the party to cure the prejudice;
(3) The likelihood of disruption to the trial; and
(4) The bad faith or willfulness involved in not disclosing
the evidence at an earlier date. Id.
issue is Plaintiffs' failure to disclose Komron Allahyari
as a non-retained expert witness. Allahyari acted as
Plaintiffs' Counsel in the underlying case and was
disclosed by Plaintiffs as a material fact witness in this
case from the outset. His general knowledge of relevant facts
and his role and involvement in the events leading to the
settlement of the underlying case are known to the Defendants
through formal discovery, including his deposition testimony.
However, Plaintiffs did not disclose him as a non-retained
expert under Rule 26(a)(2)(C). Nor did they disclose their
intent to elicit expert testimony from him at trial regarding
the settlement value of the underlying case.
assert that their failure to make the disclosures was a
result of Plaintiffs' Counsels' erroneous belief that
because of his involvement in the settlement of the
underlying case, Allahyari's testimony would not
constitute expert testimony subject to disclosure under Rule
26(a)(2)(C). Plaintiffs further assert that Defendants have
been aware of Allahyari's opinions since he sent a demand
letter in the underlying case in May 2007 and, therefore,
Defendants can claim no unfair surprise as to those opinions.
Defendants were certainly aware of Allahyari's
involvement and the contents of his settlement demand letter,
that knowledge did not extinguish Plaintiffs' obligation
to disclose him and his opinions as to the settlement value.
His opinions as to the settlement value qualify as expert
opinions under FRE 702 - not lay opinions or facts. As such,
Defendants would be prejudiced by their inability to properly
prepare for trial if Allahyari were permitted to testify
without being disclosed as a non-retained expert witness.
said, the Court is convinced that Plaintiffs' failure to
properly disclose Allahyari's expert opinions was not
willful or in bad faith, but inadvertent. In fact, it has
become clear that prior to the Court's recent rulings on
the parties' respective motions for summary judgment,
neither Plaintiffs nor Defendants fully grasped the true
measure of damages in this case or the evidence necessary to
prove or disprove those damages. This includes the need for
expert testimony as to the settlement value of
Plaintiffs' claims at the time the underlying case
settled in 2007.
to bar Allahyari's testimony would be tantamount to
dismissing Plaintiffs' suit which, the Court finds that
under the circumstances, would produce an unnecessarily harsh
result. Although the Court is clearly authorized to take such
an action under Rules 26 and 37, it is not required to do so
if the failure to disclose is harmless. Musser v. Gentiva
Health Services, 356 F.3d 751, 755 (7th Cir. 2004).
Here, the potential harm to the Defendants can be cured, and
as the Seventh Circuit instructs, “[i]n the normal
course of events, justice is dispensed by the hearing of
cases on their merits.” Salgado by Salgado v. Gen.
Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998) (quoting
Schilling v. Walworth County Park and Planning
Comm'n, 805 F.2d 272, 275 (7th Cir. 1986)).
foregoing reasons, Plaintiffs' motion is granted and
Plaintiffs will be permitted to amend their Rule 26(a)(2)(C)
disclosures to name Komron Allahyari as a non-retained expert
witness and to comply with the disclosure requirements of
26(a)(2)(C)(i) and (ii). Defendants will be allowed to take a
supplemental deposition of Allahyari relative to his expert
opinions as to the settlement value of Plaintiffs' claims
in the underlying case and will be allowed to disclose
rebuttal experts as to that issue. As a sanction under Rule
37 for their failure to timely disclose Allahyari as a
non-retained expert witness, Plaintiffs shall pay
Defendants' costs and reasonable attorney's fees
associated with the ...