163 F.R.D. 13 | D. Kan. | 1995
ORDER
On June 7,1995, defendant’s filed a motion to strike plaintiffs expert report (Doe. 46). Plaintiff filed a response on June 16, 1995 (Doc. 49). A reply brief was filed on June 21, 1995 (Doc. 52).
On December 22,1994, the court issued its scheduling order in this case. That order required plaintiff to make their expert disclosures no later than February 13, 1995. At no time did plaintiff request an extension of that deadline. April 12, 1995 was the deadline for discovery. On May 24, 1995, defendant filed a timely motion for summary judgment. On June 1, nearly four months after the deadline for making expert disclosures, plaintiff for the first time provided an expert report. Plaintiff indicates that the report had been completed since March 9, 1995 (one month after the deadline for providing expert reports), but that they had been negligent in failing to provide the report until June 1, 1995.
The failure to provide expert disclosures in a timely fashion in this case is completely inexcusable. Counsel blatantly ignored the order of this court, and failed to seek additional time if such was needed before expert disclosures could be made. Instead, plaintiff waited until a summary judgment motion had been filed, six weeks after the close of discovery, to produce an expert report which plaintiff had been sitting on for three months. There is no doubt in the court’s opinion that defendant has been severely prejudiced by the untimely action of the plaintiff. The disclosure of the expert report at this time could require defendant to reopen discovery, obtain their own expert, and file a revised summary judgment motion based on plaintiffs expert disclosures.
On the one hand, the court generally wants to see a case tried on the merits and does not want to see a client penalized for the mistakes of their counsel. On the other hand, the court cannot tolerate unexcused disregard of deadlines set by the court which result in serious prejudice to the other party. The court believes that utilization of the penalties provided for in Fed.R.Civ.P. 16(f) would appropriately balance these competing concerns.
Fed.R.Civ.P. 16(f) states that when a party or their counsel fails to obey a scheduling order, “the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.” Due to the impact sanctions may have on a party or an attorney’s career and their personal well-
IT IS THEREFORE ORDERED that the motion to strike is denied.
IT IS FURTHER ORDERED that defendant shall provide to the court an affidavit setting forth the reasonable expenses, including attorney’s fees, which they would expect to incur as a result of allowing plaintiff to name their expert and provide a report out of time. The affidavit shall be filed with the court by July 17, 1995. Defendant shall also notify the court in that same pleading if another scheduling conference is needed to provide for additional time for discovery, to name experts, to file a revised summary judgment motion, or for other reasons. Plaintiff shall then have until July 31,1995 to respond to defendant’s pleading and affidavit.