United States District Court, N.D. Illinois, Eastern Division
FRANCIS GECKER, solely as Chapter 7 Trustee for CYNTHIA COLLINS Plaintiff,
MENARD, INC. a/k/a MENARDS Defendant.
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Defendant's Motion to Strike
Plaintiff's Rule 26(a)(2)(C) Expert Disclosure of Dr.
Harold Rees and Limit His Testimony [ECF No. 137');">137]. For the
reasons discussed below, Defendant's Motion is granted in
part and denied in part.
alleges she was injured when a shopping cart made contact
with her hip outside of a Menards home improvement store in
2014. While the fact that a cart struck Plaintiff is not in
dispute, the parties disagree as to the nature, cause, and
extent of Plaintiff's injuries, including whether a right
hip replacement performed by Dr. Harold Rees, M.D., about
five years after the accident was causally related to it.
deposed Dr. Rees in April of 2019. Months after that
deposition, Plaintiff served a delayed disclosure for Dr.
Rees under Rule 26(a)(2)(C) of the Federal Rules of Civil
Procedure. That disclosure stated Dr. Rees would give expert
testimony at trial both as Plaintiff's treating physician
and with respect to the cause of Plaintiff's right hip
injury. Defendant now asks that Plaintiff's Rule
26(a)(2)(C) disclosure be stricken as untimely and because it
is not consistent with Dr. Rees's deposition testimony.
It is not clear what Defendant hopes to accomplish by
striking the Rule 26(a)(2)(C) disclosure, as Dr. Rees has
been deposed and Defendant does not seek to bar Dr. Rees from
testifying at trial. Defendant also challenges the
substantive admissibility of Dr. Rees's causation
testimony under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The
Court addresses Defendant's arguments in turn.
Plaintiff's Rule 26(a)(2)(C) Disclosures
to the discovery schedule set by the Court and agreed upon by
the parties, Plaintiff was to make her Rule 26(a)(2)
disclosures by March 27, 2019. With respect to Dr. Rees,
Plaintiff did not do so. Yet Defendant went forward with Dr.
Rees's deposition on April 2, 2019, despite not having
received the Rule 26(a)(2)(C) disclosure of Dr. Rees's
opinions and the basis for them. On July 16, 2019, more than
three months after Defendant deposed Dr. Rees, Plaintiff
served her Rule 26(a)(2)(C) disclosure. Defendant now
complains that Plaintiff's disclosure does not conform to
Dr. Rees's prior deposition testimony in some respects
and asks that the disclosure be stricken.
party disputes that Plaintiff's Rule 26(a)(2)(C)
disclosure regarding Dr. Rees was untimely. That disclosure
was not only produced after the Court's deadline, but
after Dr. Rees had been deposed. The question for the Court
is what consequence, if any, is appropriate for that untimely
disclosure where Defendant had a right to insist on receiving
the disclosure before Dr. Rees's deposition, pursuant to
the Court's scheduling order, but chose not to do so.
While Defendant says Plaintiff's late Rule 26(a)(2)
disclosure for Dr. Rees conflicts with his prior deposition
testimony, it is not clear to the Court there is a material
conflict between the two. But the Court need not resolve that
issue to rule on Defendant's Motion. Further, even if any
conflict exists, that certainly is a risk of which Defendant
was aware when it chose to proceed with Dr. Rees's
deposition having not received the Rule 26(a)(2)(C)
disclosure it was entitled to receive before taking the
Federal Rule of Civil Procedure 37(c), “[i]f 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 to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or harmless.” The Seventh
Circuit has likewise affirmed that the exclusion of
non-disclosed evidence is automatic and mandatory under Rule
37(c)(1) unless the nondisclosure was justified or harmless.
Finley v. Marathon Oil Co., 1225');">75 F.3d 1225, 1230 (7th
Cir. 1996). In assessing the harmlessness of a Rule 26
violation, courts are to consider “(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.” Westefer v. Snyder, 422 F.3d
570, 585 n. 21 (7th Cir.2005) (citing David v.
Caterpillar, Inc., 24 F.3d 851');">324 F.3d 851, 857 (7th Cir. 2003)).
purpose of the Rule 26 expert disclosure requirements is to
prevent surprise or prejudice to the opposing party.
Sherrod v. Lingle, 223 F.3d 605');">223 F.3d 605, 613 (7th Cir. 2000)
(expert discovery rules “are designed to aid the court
in its fact-finding mission by allowing both sides to prepare
their cases adequately and efficiently and to prevent the
tactic of surprise from affecting the outcome of the
case”). Here, Defendant does not argue that it was
surprised by anything Dr. Rees said in his deposition,
suggesting instead that it was surprised by the later served
Rule 26(a)(2)(C) disclosure. Yet this supposed surprise
ultimately is harmless under the circumstances of this case,
especially in terms of Defendant's ability to prepare for
on the deposition transcript, Defendant had received all
relevant reports and medical records, including Dr.
Rees's curriculum vitae, prior to deposing Dr. Rees. Even
without the proper Rule 26 disclosure, the transcript also
shows Defendant was aware Dr. Rees performed Plaintiff's
right hip replacement and that he had formed an opinion as to
the likely cause of her injury based on his treatment and the
patient's medical history provided to him. Defendant also
had already retained a rebuttal expert, Dr. William J.
Hopkinson, [1" name="FN1" id=
"FN1">1] to respond to Dr. Rees' anticipated
causation opinion. With all the above information in hand,
Defendant then took Dr. Rees's deposition on April 2,
2019. Therefore, in this case, the late Rule 26 disclosure
did not cause Defendant to “miss its opportunity to
disqualify the expert, retain rebuttal experts, or hold
depositions for an expert.” Tribble v.
Evangelides, 670 F.3d 753, 759-60 (7th Cir. 2012). In
fact, through Dr. Rees's deposition, Defendant arguably
learned more information than it would have received in a
typical Rule 26(a)(2)(C) disclosure about the basis and scope
of Dr. Rees' expert opinion. Plaintiff's failure to
provide a timely Rule 26 disclosure for Dr. Rees, therefore,
has not stymied Defendant's ability to mount a defense to
Plaintiff's claims in this case. All parties are on
notice as to the anticipated subject matter and scope of Dr.
Rees's potential trial testimony, making Plaintiff's
failure to timely disclose under Rule 26 harmless in this
courts agree that untimely Rule 26 disclosures may be
harmless where the opposing party had an opportunity to
depose the expert or was otherwise aware of the substance of
the expert's opinion. See generally, Banister v.
Burton, 28');">636 F.3d 828, 833-34 (7th Cir. 2011)
(“even if a report was necessary under [Rule
26(a)(2)(B)], the failure to file one was clearly harmless
because [plaintiff] wasn't surprised by the doctor's
testimony-he heard it before in the state trial. Also,
[plaintiff] provides no evidence that the failure to file the
report was in bad faith.”); Spearman Indus. v. St.
Paul Fire & Marine Ins. Co., 138 F.Supp.2d 1088');">138 F.Supp.2d 1088,
1094 (N.D. Ill. 2001) (where plaintiff failed to serve an
expert report under Rule 26 for one of its experts, the
violation was harmless because plaintiff previously disclosed
the expert's existence, there was no evidence of
plaintiff's bad faith in failing to serve the report,
defendant neither objected to having not received the Rule 26
disclosures nor filed a Rule 37 motion to exclude the
expert's testimony, and defendant deposed the expert
prior to trial).
in Kondragunta v. Ace Doran Hauling & Rigging
Co.,2013 WL 1189493 (N.D.Ga. 2013), the plaintiff's
failure to make appropriate Rule 26(a)(2)(C) disclosures was
harmless where the names of the experts and general subject
matter of their testimony previously had been disclosed to
the defendants. In declining to strike the experts'
testimony, the court focused, in part, on the fact that the
defendants “had the ability to complain, and thereby
cure this surprise, prior to the expiration of expert
discovery, by advising plaintiff that his disclosures did not
comply with the rule and by requesting more specific
disclosures” but did not do so. Id. at *8.
Here, Defendant knew Plaintiff had not made her Rule
26(a)(2)(C) disclosure for Dr. Rees and, as in
Kondragunta, never moved to force Plaintiff to do
so, either before or ...