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Butler v. Unified Life Insurance Co.

United States District Court, D. Montana, Billings Division

September 18, 2019

CHARLES M. BUTLER, III and CHLOE BUTLER Plaintiffs,
v.
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 REPORTS

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         Having considered the parties' submissions, the Court finds the motion should be GRANTED.

         I. BACKGROUND

         On 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, 2018. (Id.)

         On June 15, 2018, Plaintiffs provided expert disclosures for three expert witnesses: Cori M. Cook, Jim Edwards, and Christina L. Goe. (Doc. 124-1.)

         Ms. Cook was deposed on September 20, 2018 and Mr. Edwards was deposed on September 25, 2018.

         On 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.)

         Unified/Allied 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 made.

         II. ANALYSIS

         Federal 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.

         Federal 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 ...


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