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Heard v. Town of Camp Hill

United States District Court, M.D. Alabama, Eastern Division

September 20, 2017

DOUGLAS R. HEARD, Plaintiff,
TOWN OF CAMP HILL, et al., Defendants.



         Pending before the court is Plaintiff's Amended Motion to Modify the Court's Scheduling Order (Doc. 63). Also under consideration is Plaintiff's Amended Show-Cause Response (Doc. 64). Defendants have responded in opposition to the motion, as originally filed, and the court received oral argument on the motion, the show-cause response, and related discovery issues on September 19, 2017. On the basis of the filings, the applicable law, and the oral argument of the parties, it is ORDERED that the motion to modify the scheduling order (Doc. 63) is GRANTED in part and DENIED in part.


         This is the latest in a series of discovery motions necessitated by Plaintiff Douglas R. Heard's-or, more accurately, his counsel's-failure to comply with basic discovery obligations in a timely manner. See, e.g., Docs. 45 & 48-52. The court set forth the nature of Heard's allegations and the procedural history of this case in its order of August 23, 2017, and refers the parties to that order. Doc. 51.

         The court previously found that Heard served deficient expert witness disclosures on the last day allowed under the Uniform Scheduling Order. See Doc. 51. As a result, the court sustained Defendants' objections to these disclosures. Doc. 51 at 5-8. In so doing, the court found that Heard's expert disclosures did “little more than sketch out the broad contours of the subjects about which his experts will testify, ” and specifically identified Robert Schuster, M.D. as one witness for whom Heard “ha[d] not identified a single specific opinion.” Doc. 51 at 7. Even though his expert disclosures were already past due and Heard offered no justification for his failure to comply with Federal Rules of Civil Procedure 26(a)(2)(B) and (C), the court allowed Heard additional time-up to and including August 30-to supplement his disclosures. Doc. 51 at 12. The court did so only after finding that, “[a]lthough unjustified[, ] Heard's failure can be considered harmless if-and only if-he timely supplements his disclosures.” Doc. 51 at 8.

         Even that supplementation proved to be a challenge for Heard. In seeking an extension of the August 30 disclosure deadline, Heard represented to the court that Dr. Schuster was unavailable until September 1, but his expert disclosure could be completed by September 8. Doc. 52 at 2. On the basis of this representation, the court granted Heard's request for an extension to September 8. Doc. 56. Because of this extension, the court ordered a corresponding continuance of Defendants' expert witness disclosures and the discovery and dispositive motion deadlines. Doc. 56. Despite the extension, during oral argument on September 19 the court learned that Heard did not supplement his expert disclosure for Dr. Schuster even within the extended timeframe he requested.[1] As her justification for this failure, Heard's counsel offered that she “had no control over” Dr. Schuster, and simply “did not receive his affidavit.”

         The court's order of August 23 also required Heard to show cause as to why he should not be prohibited from disclosing Jeffrey R. Fraser as an expert solely because his first disclosure of this witness came on August 11, more than one month after the expert disclosure deadline. Doc. 51 at 13. In response, Heard's counsel explained that she “mistakenly presumed that Fraser's company was a subsidiary of Dr. James Lyle, M.D.'s office.” Doc. 64 at 1. Counsel clarified during oral argument that the “medical records that we received [from Dr. Lyle] were inclusive of Mr. Fraser's records, and so we presumed that he was in fact a part of Dr. Lyle's operation, or his office.” Because of this assumption, Heard's counsel believed that Dr. Lyle could “validate [Fraser's] report-it's a part of his records. [Dr. Lyle's] testimony would then be the only testimony that we would need.” At some point, however, Heard's counsel realized that Fraser and Dr. Lyle do not work together, and thereafter sought an extension of the Uniform Scheduling Order to allow Fraser's disclosure. Doc. 63.


         The court previously found that Heard's expert disclosures for Dr. Schuster and Fraser were inadequate under Rule 26(a)(2)(B) and (C). Pursuant to Rule 37(c), the court found that this failure was not substantially justified but would be harmless if Heard timely supplemented his disclosures. This supplementation has not yet occurred, and the court must again consider whether Rule 37(c) operates to preclude these witnesses from offering expert testimony at trial and other proceedings in this case. This analysis is guided by five considerations:

(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

Cambridge Univ. Press v. Becker , 2010 WL 6067575, at *3 (N.D.Ga. Sept. 21, 2010) (citation omitted). Having heard oral argument on these factors and having received the parties' briefs on the same, the court again finds that Heard's failures to comply with Rule 26(a) are not substantially justified but may be cured with timely supplementation.

         In an effort to justify her chronic inability to meet discovery obligations, Heard's counsel has done little more than pass the buck to Dr. Schuster by offering that she had “no control” over him. And she fell on her own sword in admitting that the Fraser nondisclosure was due to her own error in assessing his employment status. These are not legitimate justifications. And the excuse for Dr. Schuster, in particular, does not hold water.[2] If Rule 37(c)'s safety valve applied only to substantially justified noncompliance with Rule 26(a), Heard's counsel would have earned an exclusion for both witnesses. But Rule 37(c) also allows for harmless noncompliance with Rule 26(a). Again, the extended lag time between the failures to disclose and the June 2018 trial date gives Heard an opportunity to cure his Rule 26(a) deficiencies. For the same reasons the court previously allowed supplemental disclosures, it does so now. See Doc. 8-10.

         For the reasons stated above, it is hereby ORDERED that Heard's amended motion to modify the scheduling order (Doc. 63) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent it seeks to extend Heard's deadline for supplementing his medical expert disclosures for both Fraser and Dr. Schuster consistent with the ...

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