United States District Court, W.D. Washington, Tacoma
MICHAEL B MILLER, et al. Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
ORDER ON MOTION FOR CLARIFICATION
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant United States'
Motion for Clarification [Dkt. # 57] of the Court's Order
[Dkt. # 51] on Plaintiff Miller's Motion to Exclude
undisclosed expert testimony [Dkt. # 41]. The underlying
motion pre-dated the discovery cut-off, and the Court's
Order pre-dated the Order changing the trial date.
Government argues, as it did in response to Miller's
motion, that its initial (July 5) and rebuttal (August 5)
expert disclosures were timely and sufficient. It is
concerned that the Court's Order resulted in the
exclusion of all its experts, which was not the intent (of
either the motion of the Order). Rather, Miller sought, and
the Court ordered, the exclusion of expert opinion testimony
that was not timely disclosed.
response to the Government's motion demonstrates (as did
his own motion) that the Government waited until the very end
of discovery to conduct the long-offered Rule 35 examination
of MM. Indeed, the Government did so only after it had
deposed at least some of Miller's experts. The initial
defense expert reports are, as Miller argues, filled with
qualifiers like “tentative, ” “preliminary,
” and “premature, ” and each references the
need for revision once the underlying facts are complete.
planner Lewis bases her own
“preliminary” opinions on the preliminary,
pre-examination of other defense experts. She expressly
claims that her ultimate opinions will depend on the results
of the investigations of others. Miller claims Lewis never
supplemented her opinions, even after MM's July 9
examination. Another defense expert, Dr.
Bouldin, performed that examination after
his initial report, and then filed a rebuttal report on the
last day of discovery. Miller claims he thus had no
meaningful opportunity to depose Bouldin. The
Government's economist, Knowles, was not
initially disclosed, and prepared only a
“rebuttal” report. Miller claims that the need
for economist was clear from the start and that Knowles'
“rebuttal” report is only partially aimed at
rebutting Miller's expert's testimony. And Miller
claims that Dr. Thompson's opinions are
similarly tentative, even though she had Miller's experts
opinions (and depositions) prior to disclosing her
reiterates authority holding that a party who fails without
substantial justification to timely disclose its experts'
opinions and the bases for them shall not be permitted use
that evidence at trial, absent a showing that the failure was
substantially justified or was harmless. Fed.R.Civ.P.
Government argues that its initial expert disclosures were
timely and sufficient, and that supplementation after a
timely-requested Rule 35 examination is routine and within
the rules. Citing Bridgeham-Morrison v. National General
Assurance Co., No. C15-0927RAJ 2016 WL 231284 (W.D.
Wash. Jan 19, 2016). It points out that Miller has
deposed none of its expert and that it remains
willing to permit such discovery even now. Miller accurately
claims that discovery is closed, and he should not be forced
to depose an expert after the cutoff to learn information
that should have already been disclosed. It is not
necessarily an answer to a claim that one's expert
reports are incomplete to say well, you can just depose him.
The two are not alternatives.
motion to exclude did not seek the exclusion of specific
testimony. The Government's response-that Miller sought
an “advisory opinion”-initially struck a chord.
But the Federal Rules wisely and fairly place on the
proponent of expert testimony the obligation to disclose her
expert, his qualifications, his opinions, and the bases for
those opinions. The Rules reflect and impose a sense of
fairness: if a proponent does not meet her obligation, she
must demonstrate why the expert evidence she failed to fully
disclose should nevertheless be admitted. The Court's
Order therefore did not attempt to parse which expert's
disclosure matched what opinion he would ultimately offer at
trial. Like the Rules and the cases construing them, the
Court ordered that opinions not timely or properly disclosed
would not be admitted at trial, absent an affirmative showing
that the testimony should nevertheless be admitted.
Government's motion asks the Court to articulate which of
its potential witnesses' testimony is excluded. The
answer is that opinions which were not fairly disclosed will
not be admitted, absent the requisite showing. The burden of
identifying and resolving this issue is not on Miller, or the
seems plain that Government expert Lewis did not finalize her
opinion, whether or not Miller chose to depose her. The need
for an opinion like economist Knowles'
“rebuttal” opinion was obvious from the start,
and those portions of his proffered testimony that do not
actually rebut Miller's economist expert's opinion
are, at this point, excluded. If the Government intends to
have Dr. Thompson opine on something new, dramatically
different than, or inconsistent with her preliminary
opinions, it should seek to make the requisite showing prior
Bouldin is a different case, because the Government's
arguments about the need and right to supplement after an
examination are correct. In light of the continuance, Miller
should take the opportunity to depose Bouldin,
notwithstanding the discovery cutoff. Most of the prejudice
from deviating from a well-planned trial preparation schedule
can be and should be avoided.
discovery process should be fair, and it should be
proportional. No. court likes discovery disputes, and at
least this Court is reluctant to exclude expert or other
testimony unless its proponent has tried to evade its
discovery obligations to obtain an advantage. A case should
be tried fairly, on its merits. The Court does not punish
foot faults and it does not reward sharp practice.
to the extent this Order clarifies the Court's prior one,