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Levingston v. Luna

United States District Court, S.D. Alabama, Southern Division

February 14, 2018

ELIZABETH LEVINGSTON, as Administratrix of the Estate of GEORGE FREDERICK LEVINGSTON, II, Deceased Plaintiff,



         This matter is before the Court on Defendants' Motion to Strike and Preclude Plaintiff's Expert Witness pursuant to Federal Rules of Civil Procedure 16(f)(1)(c), 26(a)(2), and 37(c)(1) due to Plaintiff's failure to comply with the Court's Rule 16(b) Scheduling Order. (Doc. 17). After review of Defendants' Motion and for the reasons set forth herein below, Defendants' Motion (Doc. 17) is DENIED.


         Plaintiff filed this wrongful death action on May 16, 2017, in the Circuit Court of Mobile County, Alabama following the death of George Levingston, II, as a result of a wreck involving a tractor trailer driven by Defendant Jose Arevalo Luna (“Luna”). (Doc. 1). The action was subsequently removed to this Court on June 19, 2017. (Id.) On August 4, 2017, this Court entered a Rule 16(b) Scheduling Order which set the deadline for Plaintiff to disclose experts pursuant to Federal Rule of Civil Procedure 26(a)(2) for November 13, 2017. (Doc. 7 at 2). The Scheduling Order also set the discovery deadline for January 12, 2018. (Id. at 1).

         On August 17, 2017, Defendants propounded their first set of discovery to Plaintiff to which Plaintiff responded on September 20, 2017. (Doc. 17 at 2). In response to Defendants' request for Plaintiff to identify expert witnesses she intended to call at trial, Plaintiff identified Bradley Parden (“Parden”) with Data Recovery Solutions, Southeast Forensic Consultants[1] and indicated supplementation would be forthcoming. (Id.) Defendants' Requests for Production additionally requested the curriculum vitae, relevant correspondence, and additional supporting documents related to Plaintiff's experts. (Id. at 3). On September 6, 2017, Defendants were given, via email, an “Extraction Report” which Defendants understood to be a download of information of Luna's cellphone. (Id.) Seven days after the expert disclosure deadline, on November 20, 2017, Plaintiff's counsel sent Defendants' counsel an email stating: “Please see attached the supplemental report of our expert. Thank you.” (Doc. 17-3). Attached to the email was a “Data Recovery Solutions LLC Forensic Report” prepared by Parden. (Doc. 17-4).

         Defendants filed the instant motion on December 7, 2017, asserting that Plaintiff should be precluded from using any expert opinions or testimony at trial due to Plaintiff's failure to comply with the Rule 16(b) Scheduling Order or Federal Rule 26(a)(2). (Doc. 17, generally). On January 24, 2018, Plaintiff timely responded to Defendants' motion arguing Plaintiff properly disclosed its expert witness, that no prejudice would result should Plaintiff's expert be allowed to testify, or that alternatively, Plaintiff's failure to properly disclose, if such occurred, was the result of excusable neglect and should not prevent the expert's testimony at trial. (Doc. 31, generally).[2] Defendants timely replied on January 31, 2017. (Doc. 33).


         Defendants' motion is straight forward, it seeks exclusion of Plaintiff's expert, Parden, based on Plaintiff's failure to comply with the expert disclosure deadline in this Court's Scheduling Order and pursuant to Rule 26(a)(2) because the untimely disclosure still failed to provide the other related documents required by the rules, i.e., curriculum vitae, list of cases where expert was involved, fee schedule, etc. (Docs. 17, 33, generally).

         In response, Plaintiff argues that her expert disclosures were timely. (Doc. 31 at 4). More specifically, Plaintiff asserts Parden's identity was disclosed within three weeks of the underlying wreck occurring, that counsel for the parties exchanged thirteen emails and numerous phone calls regarding Plaintiff's expert, that defense counsel was present at two separate meetings wherein Parden downloaded the content of Luna's cell phone, that Parden was disclosed in response to written discovery and that Parden's first expert report, identified as an “Extraction Report” was provided to Defendants prior to the deadline to provide expert reports. (Id.) Plaintiff alternatively asserts that Defendants will not be unduly prejudiced should Parden be allowed to testify given Plaintiff's longstanding knowledge of Parden, because Plaintiffs have had their own similar expert, and because trial was still eight months away when Parden's report was provided. (Doc. 31 at 4-6). Lastly, Plaintiff asserts that even if Plaintiff's expert disclosure was not timely, and would cause undue prejudice, Parden should still be allowed to testify because the untimeliness was the result of excusable neglect, i.e., Plaintiff's counsel's improperly calendaring the expert disclosure deadline. (Doc. 31 at 6-8).

         Defendants do not contest that Parden's identity was known prior to the deadline for expert disclosures and there is no dispute that Parden did provide an Extraction Report prior to the expert disclosure deadline, although Defendants contest that the same was an actual expert report. The parties also agree that Plaintiff did provide a second report to Defendants, albeit seven days after the relevant deadline. However, in reply, Defendants argue that even if the untimely disclosure was not prejudicial or was the result of excusable neglect, to date, Plaintiff's disclosures remain unjustifiably insufficient pursuant to Federal Rule 26, which is prejudicial because discovery is now closed. (Doc. 33, generally).

         The relevant portion of this Court's Scheduling Order states as follows:

EXPERT TESTIMONY. The disclosure of expert testimony as required by Fed.R.Civ.P. 26(a)(2) is to be made by Plaintiff on or before November 13, 2017. The disclosure of expert testimony as required by Fed.R.Civ.P. 26(a)(2) is to be made by Defendants on or before December 13, 2017.

(Doc. 7 at ¶ 6). Federal Rule of Civil Procedure 26 requires that any expert witness “disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case.” ...

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