U.S. District Court, E.D. North Carolina, Northern Division, February 26, 2020
NORTH CAROLINA – On December 21, 2017, the plaintiff, Karen Cahoon filed a complaint alleging state law claims of negligence, breach of an implied warranty, failure to warn and punitive damages against, among others, the defendant, Edward Orton, Jr. Ceramic Foundation. A scheduling order was issued by the court on May 11, 2018. After multiple joint requests on behalf of Cahoon and the defendant, on Jan. 8, 2019, the court issued new deadlines for exchange of discovery and filing of expert reports. Under the new scheduling order, Cahoon’s expert reports were due March 15, 2019, the defendant’s expert reports were due April 15, 2019, the discovery end date was April 5, 2019 and dispositive motions were to be filed by May 1, 2019.
Cahoon failed to serve her expert reports by March 15, 2019. On April 15, 2019, the defendant served its expert reports, and timely moved for summary judgment on May 1, 2019. Cahoon requested the defendant’s permission to serve expert reports on May 7, 2019, the defendant objected to Cahoon’s untimely request. Cahoon then filed a motion seeking an extension to file expert reports on May 10, 2019, stating that a clerical error caused the late submissions. The defendant opposed Cahoon’s’ motion.
In opposition to the defendant’s summary judgment motion, Cahoon attached the untimely served expert reports of Drs. Cohen, Staggs and Spear.
Under Fed. R. Civ. P. 37(c)(1), “if a party fails to [timely] provide information…as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In determining whether to exclude untimely expert disclosures, the court may consider five factors:
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
5. the non-disclosing party’s explanation for its failure to disclose the evidence[i]
Here, the court found that all five factors weighed strongly in favor of excluding Cahoon’s experts. Likewise, under Rule 16(f), the court prohibited Cahoon’s expert reports for failure to demonstrate “good cause” for her untimely filing of expert reports. The court stated, “if the court were to allow Cahoon to introduce the expert reports of Dr. Cohen, Dr. Staggs, and Dr. Spear, the court would have to reopen discovery and abandon the entire schedule in an already much-delayed case. Allowing Cahoon’s reports would also signal to future litigants that the court’s scheduling orders are ‘frivolous pieces of paper idly entered’ and subject to cavalier disregard.” Accordingly, the court denied Ms. Cahoon’s motion for extension.
Without expert analysis, Ms. Cahoon was unable to meet her burden of demonstrating causation. Therefore, the court also granted Defendant’s motion for summary judgment.
Read the case decision here.
[i] S. States Rack & Fixture, 867 F.3d at 597.