United States District Court, D. Montana, Billings Division
CHARLES M. BUTLER, III and CHLOE BUTLER Plaintiffs,
UNIFIED LIFE INSURANCE COMPANY; HEALTH PLANS INTERMEDIARIES HOLDINGS, LLC, doing business as Health Insurance Innovations, doing business as Health Insurance Innovations, Inc.; ALLIED NATIONAL, INC.; NATIONAL BROKERS OF AMERICA, INC.; THE NATIONAL CONGRESS OF EMPLOYERS, INC.; and DOES 1-10 Defendants.
ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL EXPERT
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants Unified Life Insurance Company
and Allied National, Inc.'s ("Unified/Allied")
Motion to Strike Plaintiffs' Supplemental Expert Reports.
(Doc. 123). The Motion has been referred to the undersigned
under 28 U.S.C. § 636(b)(1)(B), and is fully briefed and
ripe for the Court's review.
considered the parties' submissions, the Court finds the
motion should be GRANTED.
February 22, 2018, the Court issued a Scheduling order
setting the deadline for disclosure of liability experts for
June 15, 2016 and rebuttal expert disclosures for July 15,
2018. (Doc. 66.) The discovery deadline was September 14,
15, 2018, Plaintiffs provided expert disclosures for three
expert witnesses: Cori M. Cook, Jim Edwards, and Christina L.
Goe. (Doc. 124-1.)
Cook was deposed on September 20, 2018 and Mr. Edwards was
deposed on September 25, 2018.
September 28, 2019, more than three months after the expert
disclosure deadline, and after Ms. Cook and Mr. Edwards had
been deposed, Plaintiffs provided a "First
Supplemented" report from Ms. Cook. (Doc. 124-2 atl-21.)
Plaintiffs provided a "First Supplemented" report
from Mr. Edwards a few days later, on October 1, 2018.
(Id. at 22-41.) Ms. Cook's supplemental report
disclosed three new opinions. (Id. at 19-21.) Mr.
Edwards' supplemental report provided an expanded
analysis for his opinions. (Id. at 32, 35-37.)
now move to strike the supplemental expert reports of Ms.
Cook and Mr. Edwards as untimely. (Doc. 123.) Unified/Allied
contend the experts did not identify, or base their opinions
on, any significant new information that was unavailable to
them prior to June 15 or July 15. Plaintiffs counter that the
supplemental reports addressed new information that was
revealed in discovery after the initial disclosures had been
district courts routinely set schedules and deadlines in
order to manage the efficient and orderly resolution of
cases. Wong v. Regents of Univ. of
California, 410 F.3d 1052, 1060 (9th Cir. 2005). The
Ninth Circuit has observed:
Those efforts will be successful only if the deadlines are
taken seriously by the parties, and the best way to encourage
that is to enforce the deadlines. Parties must understand
that they will pay a price for failure to comply strictly
with scheduling and other orders, and that failure to do so
may properly support severe sanctions and exclusions of
evidence. The Federal Rules of Civil Procedure explicitly
authorize the establishment of schedules and deadlines, in
Rule 16(b), and the enforcement of those schedules by the
imposition of sanctions, in Rule 16(f).
Id. Yet, "[d]eadlines must not be enforced
mindlessly." Id. Sometimes there may be good
reason to permit expert opinions to be disclosed after the
established deadline. Id.
Rule of Civil Procedure 26(a) requires the parties to make
their expert witness disclosures "at the times and in
the sequence that the court orders." Fed.R.Civ.P.
26(a)(2)(D). Rule 26(e) requires the supplementation of
expert reports "in a timely manner" upon discovery
of new information. Fed.R.Civ.P. 26(e)(1)(A);
Plentyhawkv. Sheikh, 2016 WL 3086404, *3 (D. Mont.
May 31, 2016). Rule 26(e), however, "does not give
license to sandbag one's opponent with claims and issues
which should have been included in the expert witness'
report." Id. (citing Lindner v. Meadow Gold
Dairies, Inc.,249 F.R.D. 625, 639 (D. Haw. 2008)).
"The duty to supplement is not an opportunity to add to
information which should have been disclosed initially under
Rule 26(a)." Erickson v. Ford Motor. Co., 2007
WL 5527512, *6 (D. Mont. Nov. 14, 2007). Rather,
"[supplementation under the Rules means correcting