District Court Bars Expert Opinion That Was Not Disclosed On Time

Rule 37 allows a district court to sanction a litigant who withholds evidence. Usually, that consists of a failure to produce documents or a failure to answer interrogatories. Sometimes, the failure involves a litigant’s refusal to cooperate with depositions. Even more rare is the litigant who does not disclose the existence of a witness until discovery has closed and the Defendant has moved for summary judgment.

This case, Lamb v. Montgomery Township, is a civil rights case where the plaintiff alleged that the Township violated her rights under Title VIII and 42 USC Section 2000e.

For reasons that are not fully apparent from the opinion, Lamb did not disclose an expert on time. Instead, she waited until she filed her response to the Township’s summary judgment motion to attach an affidavit of an expert witness. The District Court struck the affidavit and granted summary judgment and the Court of Appeals affirmed that decision.

The reasoning is provided here:

The District Court did not abuse its discretion in striking the Brogna Declaration. The the record demonstrates that Lamb’s litigation conduct deprived the Defendants of the opportunity to depose Brogna. Federal Rule of Civil Procedure 26(a)(2) requires the disclosure of experts and their reports “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Under Rule 37, district courts are authorized to exclude evidence if a party violates the requirements of Rule 26(a). Fed. R. Civ. P. 37(c)(1). A party can overcome Rule 37 sanctions by demonstrating that a Rule 26 violation was “substantially justified or . . . harmless.” Fed. R. Civ. P. 37(c)(1). We have cautioned that district courts should only exclude critical evidence such as expert testimony upon “a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791-92 (3d Cir. 1994) (internal quotation marks and citation omitted).

The District Court concluded that Lamb’s conduct was neither substantially justified nor harmless. First, her tactics deprived the Defendants of a meaningful opportunity to depose Brogna by classifying Brogna as an expert witness to avoid a fact deposition, and then by failing to produce her expert report (i.e. the Brogna Declaration) until well after the deadline for expert depositions. Second, the justification offered for that failure — that Lamb had not received relevant discovery in time for Brogna to provide a timely expert report — was unconvincing. Lamb had received the necessary discovery nearly two months prior to submitting her summary judgment opposition. The District Court determined that Lamb’s decision to blindside the Defendants at summary judgment, instead of providing a timely report or requesting an extension of expert discovery deadlines, was a flagrant disregard of the rules. There was no abuse of discretion in the consequent granting of the Defendants’ motion to strike.[6]

via Lamb v. Montgomery Township, Court of Appeals, 3rd Circuit 2018 – Google Scholar

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