United States District Court, W.D. Washington, Tacoma
CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, Plaintiff,
CITY OF VANCOUVER, et. al., Defendants.
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE
J. BRYAN United States District Judge.
matter comes before the Court on the Defendants' Motion
to Exclude Expert Witness. Dkt. 39. The Court has considered
the motion and the remaining record.
November 29, 2016, a scheduling order was entered in this
case, setting the expert disclosure (pursuant to Fed.R.Civ.P.
26 (a)(2)) deadline for April 26, 2017. Dkt. 11. The deadline
to complete discovery is June 26, 2017, the dispositive
motions deadline is July 25, 2017, and the case is set to
begin trial on October 23, 2017. Id.
April 26, 2017, Plaintiff filed his “Disclosure of
Expert Witnesses, ” indicating that he intended to use
Professor Gregory G. Gilbertson as an expert witness. Dkt.
32. Plaintiff's disclosure states that, “Professor
Gilbertson is a Criminal Justice Professor and a Private
Investigator. In addition to his work as an Expert witness,
his other areas of expertise include Police Procedures,
Criminal Investigation, NATO Mentor & Liason [sic],
Curriculum Development, Criminal Defense Casework,
International Police Training, dult [sic] Education and
Classroom Instruction.” Id. The disclosure
states that Professor Gilbertson's CV and fee schedule
were attached, but no attachments were actually filed. The
disclosure further states that the report of his findings
“regarding the conduct of the Vancouver Police
Department will be forthcoming.” Id.
same day, a paralegal working for Plaintiff's lawyer
emailed defense counsel and requested a 30 day extension of
time to exchange expert reports. Dkt. 53, at 5.
Defendants' response is not in the record.
1, 2017, Defendants filed the pending Motion to Exclude
Expert Witness. Dkt. 39. Defendants assert that
Plaintiff's filed disclosure was not adequate and they
still have not received Professor Gilbertson's report.
Id. Defendants move the Court for an order excluding
Professor Gilbertson from testifying as an expert witness in
this case. Id.
responds and states that his failure to attach Professor
Gilbertson's CV and fee schedule was inadvertent; and he
was first aware of the deficiency when Defendants filed their
motion. Dkt. 49. Plaintiff has now sent Professor
Gilbertson's CV, fee schedule, and the list of documents
he was reviewing for Plaintiff to the Defendants.
Id. Plaintiff opposes the motion to exclude, and
states that Professor Gilbertson has informed him that his
report will be finished this Friday, June 23, 2017.
Id. Plaintiff has also filed a motion to extend the
discovery deadline so that Defendants have time to depose
Professor Gilbertson or otherwise respond to his report. Dkt.
51. Plaintiff also indicates that if necessary, he would
agree to a shortened response time to a motion for summary
judgment. Id. The motion to extend case deadlines is
noted for consideration on June 23, 2017.
Civ. P. 37 (c)(1), Failure to Disclose or Supplement,
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 to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of
the orders listed in Rule ...