Indiana Insurance v. Hussey Seating Co.

176 F.R.D. 291, 40 Fed. R. Serv. 3d 265, 1997 U.S. Dist. LEXIS 17142, 1997 WL 675181
CourtDistrict Court, S.D. Indiana
DecidedOctober 1, 1997
DocketNo. IP 95-844 C B/S
StatusPublished
Cited by5 cases

This text of 176 F.R.D. 291 (Indiana Insurance v. Hussey Seating Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Indiana Insurance v. Hussey Seating Co., 176 F.R.D. 291, 40 Fed. R. Serv. 3d 265, 1997 U.S. Dist. LEXIS 17142, 1997 WL 675181 (S.D. Ind. 1997).

Opinion

ORDER

BARKER, Chief Judge.

Defendant, Hussey Seating Company (Hussey), moves to exclude the testimony of Plaintiff Indiana Insurance Company’s damages expert, Robert Smith (Smith), on two grounds: (1) Smith did not prepare and sign his Rule 26(b) Report as required by the Rules of Civil Procedure; and (2) Smith’s Report only disclosed damages calculations on a replacement cost basis which, Defendant maintains, is the incorrect measure of damages under Indiana law.

Defendant has briefed this motion twice— first, in a motion to exclude Smith’s testimony and second, in a motion in limine. On September 25,1997, the Court held a hearing on these issues and, on September 26, 1997, further propounded five written interrogatories to the parties’ counsel in order to ensure a proper and fair determination of the issues raised. Having fully considered Defendant’s motions and the evidence adduced on these issues, the Court hereby denies Defendant’s motion to exclude the testimony of Smith, but, pursuant to Rule 37, orders that sanctions be imposed against Plaintiff for Plaintiffs failure to comply with the clear requirements of Rule 26 disclosure provisions. Plaintiff accordingly is ordered to pay Defendant’s expenses (costs and attorneys fees) incurred in relation to both motions to exclude Smith’s testimony, Defendant’s expenses incurred in responding to the Court’s September 26th interrogatories and Defen- ■ dant’s attorneys’ fees for the two hours that Defendant’s counsel spent addressing these issues in court on September 25th, 1997.

Discussion

Federal Rule of Civil Procedure 26(a)(2)(B) provides that expert disclosures be “accompanied by a written report prepared and signed by the witness.” Fed. R.Civ.P. 26(a)(2)(B) (emphasis added). Although Plaintiff timely disclosed a written report to Hussey in January, as required by the parties’ case management plan, Smith failed to sign it. To make matters worse, when asked in his deposition on May 23, 1997, if he had prepared the written report disclosed to Hussey, the following exchange took place:

Q: Mr. Smith, why don’t we start off with your Rule 26(a)(2) disclosure, if we could mark that as Defendant AAI exhibit 1. [Exhibit marked]
Q. If you could, identify what has now been marked as AAI’s Exhibit 1.
A: Rule 26(a)(2) disclosure of Robert E. Smith.
Q: Who prepared that?
A: Clausen Miller [Plaintiffs counsel].

Smith Dep. at 12-13.

Fortunately for Plaintiff, the deposition did not conclude on the spot. Instead, Smith was asked if there was any part of the Report that he had prepared. Smith explained that he prepared the nine opinion reports contained in “Tab D” of the Report and that the other documents contained in the Rule 26 disclosure were either work papers he used in the course of adjusting North Central’s [293]*293insurance claim or summaries of his qualifications or his “expert” opinions which were actually written by Plaintiffs lawyers. Smith Dep. at 13-17. Thus, although he had not signed the Report, Smith did substantially adopt it as his own, testifying that the opinions contained in the disclosure were his. See Smith Dep. at 15-17.

We are disturbed that Plaintiffs counsel’s compliance with Rule 26 disclosure requirements was non-chalant, if not half-hearted. To turn over a report to Hussey which was neither signed nor a version naturally embraced by Smith does not suffice under the Rule. Yet we do not believe that these technical discrepancies warrant an order barring Plaintiff from introducing Smith’s testimony at trial.

Unquestionably, Rule 26 requires an expert witness to prepare his own Rule 26 Report. Nevertheless, the Advisory Committee Notes to Rule 26 contemplate the assistance of counsel in preparing an expert’s report:

Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.

Rule 26, Advisory Committee Notes (emphasis added).

In Marek v. Moore, the court was confronted with a situation similar to the one we face in the present case. 171 F.R.D. 298 (D.Kan.1997). In Marek, an expert had prepared a report which he submitted to the counsel which had engaged him. The lawyers made authorized revisions, fleshing out certain parts of the report, and then submitted the revised, unsigned version to opposing counsel as their expert’s rule 26(a)(2)(B) report. Marek, 171 F.R.D. at 300. As in our case, the Marek expert stated in his deposition that he had not prepared the report. Id. Opposing counsel moved to strike the expert report.

The Marek court declined to strike the report, stating, “[ujnlike the attorney, the expert witness more likely preoccupies himself with his profession or field of expertise. He may have little appreciation or none whatsoever for Rule 26 and its exacting requirements for a legally ‘complete’ report of the expert opinions, including all the ‘data or other information’; and designating all supporting exhibits.” Marek, 171 F.R.D. at 301.

■ The court continued:

“To help ensure complete disclosure of the required information, counsel ordinarily should supervise preparation of the expert’s witness report. Such assistance is permitted, though the report should be written in a manner that reflects the testimony to be given by the expert witness and must be signed by the expert.”

Marek, 171 F.R.D. at 301 (quoting William W. Schwarzer, et al., Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice § 1[b][3] (2nd ed.1994)) (emphasis added).

Although Smith apparently did not assemble the papers comprising his Report nor did he write all of them, he testified, for example, that one of the documents not prepared by him was “paraphrased” by the lawyers from Smith’s explanation of his qualifications. This type of assistance seems clearly to fall within the type permitted by Rule 26(a)(2)(B). More important, “Tab D” of the Report, which contains Smith’s work papers and schedules, including certain of his opinions and the bases for those opinions, was, in fact, prepared and adopted by him at his deposition. Smith Dep. at 15-17. Nevertheless, Plaintiff plainly violated Rule 26 by failing to have Smith sign the Report and by the Report not being written in a manner that reflected the testimony specifically to be given by him and embraced by him.

Pursuant to Rule 37(c), a party’s failure to comply with Rule 26(a) results in an “automatic and mandatory” exclusion of expert testimony, unless the party to be sanctioned can show that the violation was “justified or harmless.” Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996).

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176 F.R.D. 291, 40 Fed. R. Serv. 3d 265, 1997 U.S. Dist. LEXIS 17142, 1997 WL 675181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indiana-insurance-v-hussey-seating-co-insd-1997.