Morrison v. Quest Diagnostics Incorporated, 2:14-cv-01207

Plaintiff Patricia Harding Morrison sued Quest Diagnostics and John Hiatt concerning alleged inaccurate HIV-1 antibody testing/reporting for Tommy Morrison and related licensing actions by the Nevada State Athletic Commission (NSAC).
Court set an expert disclosure deadline of March 10, 2016. Plaintiff disclosed forensic document examiner Debra Dunlap on March 23, 2016 and attached a report dated January 15, 2015; the report had not been previously served.
Defendants moved to strike Dunlap and exclude her testimony as untimely under Rule 26 and sanctionable under Rule 37(c)(1); they argued her opinions are irrelevant to the medical/testing issues central to the case.
Plaintiff argued Dunlap was a permissible rebuttal expert because defendants’ expert (Dr. Branson) opined that NSAC had consent to receive test results, and Dunlap’s handwriting analysis shows the consent signature may be forged; Plaintiff also asserted the late disclosure was harmless and partly pro bono.
Court compared the substance of Dr. Branson’s medical/testing opinions with Dunlap’s handwriting opinions and found Dunlap was not a rebuttal expert under Rule 26(a)(2)(D)(ii) and that the late disclosure was neither substantially justified nor harmless.
Court granted Defendants’ motion: Dunlap’s report and testimony were stricken/excluded for untimely disclosure and failure to justify or show harmlessness under Rule 37(c)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of expert disclosure	Dunlap was disclosed as a rebuttal expert after Defendants’ report; lateness is harmless and justified (pro bono work; Defendants opened the door)	Disclosure after March 10 deadline violated scheduling order and Rule 26; not rebuttal; prejudicial	Disclosure untimely; exclusion warranted under Rule 37(c)(1)
Whether Dunlap is a rebuttal expert	Dunlap rebuts Dr. Branson’s opinion that NSAC had consent to receive results by challenging signature authenticity	Dunlap’s opinions do not contradict Dr. Branson’s medical/testing opinions and predate Branson’s report	Dunlap is not a rebuttal expert under Rule 26(a)(2)(D)(ii)
Harmlessness/substantial justification for late disclosure	Late service was harmless; Plaintiff prepared to meet deadlines and reserved right to add witnesses; limited prejudice	Plaintiff opposed extension, told court she could comply, and has not shown justification or lack of prejudice	Plaintiff failed to show substantial justification or harmlessness; burden on Plaintiff not met
Relevance/utility of proposed testimony	Handwriting analysis is probative of consent issue and thus material to who authorized release of results	Central claims concern lab testing accuracy and HIV diagnostic efficacy; handwriting opinion is unrelated to core issues	Dunlap’s testimony would not assist the trier of fact on the matters before the court and is therefore excluded

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843 (9th Cir. 2014) (district court has wide discretion in controlling discovery and imposing sanctions)
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (district court’s sanctioning power under Rule 37 reviewed for abuse of discretion)
Goodman v. Staples The Office Superstore, 644 F.3d 817 (9th Cir. 2011) (Rule 37(c)(1) is a self-executing sanction to enforce Rule 26 disclosures)
Wong v. Regents of the University of California, 410 F.3d 1052 (9th Cir. 2005) (scheduling orders must be enforced; untimely expert disclosures may be excluded)
Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255 (9th Cir. 1998) (affirming exclusion of late expert disclosures/reports)
Elgas v. Colorado Belle Corp., 179 F.R.D. 296 (D. Nev. 1998) (strict compliance with Rule 26 required or exclusion unless justification/harmlessness shown)
Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008) (burden on party facing sanctions to prove harmlessness)
Cont'l Lab. Prods., Inc. v. Medax Int'l, Inc., 195 F.R.D. 675 (S.D. Cal. 2000) (district court discretion in discovery sanctions)
Keener v. United States, 181 F.R.D. 639 (D. Mont. 1998) (degree of sanction for Rule 26 violations lies within trial judge discretion)