United States District Court, M.D. Alabama, Northern Division
W. HAROLD ALBRITTON, Senior District Judge.
This cause is before the court on the Plaintiff's Opposed Motion to Exclude Defendant's Expert Testimony (Doc. #28).
The Plaintiff seeks to exclude the testimony of Defendant's expert witness, Allen K. Powers, on two grounds: failure to comply with Rule 26 and failure to comply with Rule 702.
Rule 26 of the Federal Rules of Civil Procedure requires disclosures of expert witness reports and other information. On February 6, 2014, the parties submitted a Report of Parties Planning Meeting in which they requested dates for Rule 26 expert disclosures. (Doc. #9). Thereafter, this court entered a Scheduling Order, not objected to, which set October 10, 2014 as the Defendant's expert disclosure deadline, and which stated that "[u]nless an objection is filed within 14 days after disclosure of any expert witness, the disclosure shall be deemed to be in full compliance with the Rule." (Doc. #10 at §8) (emphasis in original). While other deadlines were extended at the request of the Defendant with the consent of the Plaintiff, the deadline for objections to expert disclosures was not extended. (Doc. #23 at p.2). Defendant's expert disclosure of Powers, with his report, was made on October 10, 2014 as required. The report disclosed that Powers had "[c]reated scale drawings of the accident scene and vehicles." (Doc. #37-1).
The instant motion was filed on December 19, 2014, well after the deadline for objections to the Defendant's Rule 26 disclosures. The Plaintiff concedes that she did not file an objection under Rule 26 within the deadline provided by the court's Scheduling Order. She points to a request for a diagram made by email on November 4, 2014, but even that email request was outside of the deadline for objections to disclosure. She offers no other explanation for her failure to object to the adequacy of the report within the time provided by the Scheduling Order.
The Plaintiff has not demonstrated good cause for amending the Scheduling Order to allow her December 19, 2014 motion to be timely. Fed. R. Civ. Pro. 16(b)(4) (stating "[a] schedule may be modified only for good cause and with the judge's consent."); see also Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1988). Therefore, the court will enforce the Scheduling Order deadline and the expert's testimony is not due to be excluded on the basis of Rule 26.
The admissibility of expert testimony is governed by Fed. R. of Evid. 702 which provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...