1 2
3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 LAKHAN JHA and MINAKSHI CASE NO. 2:23-cv-00584 8 KUMARI, ORDER GRANTING PLAINTIFFS’ 9 Plaintiffs, MOTION TO EXCLUDE CHICAGO TITLE’S EXPERT WITNESSES 10 v. 11 CHICAGO TITLE INSURANCE COMPANY, 12 Defendant. 13
14 1. INTRODUCTION 15 This case involves a dispute over title insurance coverage for an easement 16 affecting Plaintiffs’ property. The parties’ expert disclosures have been marked by 17 repeated failures to comply with Federal Rule of Civil Procedure 26. This matter 18 comes before the Court on Plaintiffs’ Motion to Exclude Chicago Title’s Expert 19 Witnesses Due to Discovery Violation and Improper Expert Witness Disclosures. 20 Dkt. No. 176. Having reviewed the motion, response, reply, and relevant portions of 21 the record, the Court GRANTS the motion. 22 23 1 2. BACKGROUND 2 On November 4, 2024, Chicago Title disclosed Christopher Morey, a surveyor
3 with True North Land Surveying, Inc., as an expert witness. Dkt. No. 177 at 7–8. 4 The disclosure included an unsigned desk plot survey dated September 23, 2021, 5 bearing the name and professional stamp of Eileen M. Forrester, not Morey. Id. at 6 11–12. Forrester created the desk plot survey for True North but retired at some 7 point between September 2021 and November 2024. Dkt. No. 187 at 2. Chicago Title 8 represents that Morey “remains employed by True North, has access to the survey
9 files, reviewed the files, and will testify that the survey illustrates the location of 10 two different easements on Plaintiffs’ property.” Id. To date, Chicago Title has not 11 provided a signed expert report from Morey. 12 Plaintiffs disclosed their surveying expert, Robert Johnson, on December 11, 13 2024, and provided his expert report on June 22, 2025—well after the December 5, 14 2024, disclosure deadline. In a separate order, the Court granted Chicago Title’s 15 motion to exclude Johnson based on the untimely disclosure of his report.
16 On August 5, 2025—over forty days after receiving Johnson’s report— 17 Chicago Title disclosed Ken Shipley as another expert witness without providing a 18 report, claiming none was required. Dkt. No. 177 at 34. Shipley was designated to 19 rebut Johnson’s testimony about survey method and property valuation. Id. 20 21
22 23 1 3. DISCUSSION 2 3.1 Legal standard. Under Rule 37(c)(1), a party who fails to provide information required by 3 Rule 26(a) “is not allowed to use that information or witness to supply evidence … 4 at a trial, unless the failure was substantially justified or is harmless.” This 5 exclusion operates as a “‘self-executing’, ‘automatic’” sanction designed to provide “‘a 6 strong inducement for disclosure.’” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 7 F.3d 1101, 1106 (9th Cir. 2001) (quoting Fed.R.Civ.P. 37 advisory committee’s note 8 (1993). The party facing sanctions bears the burden of proving substantial 9 justification or harmlessness. Goodman v. Staples the Off. Superstore, 644 F.3d 817, 10 827 (9th Cir. 2011). 11 12 3.2 Christopher Morey must be excluded as an expert. 13 The Court notes that Plaintiffs waited ten months after Morey’s November 14 2024 disclosure to challenge his designation, creating an avoidable eve-of-trial 15 emergency through either oversight or tactical calculation. While the Court does not 16 condone such dilatory litigation tactics, Chicago Title’s Rule 26 violations warrant 17 exclusion nonetheless. 18 Chicago Title’s failure to provide any expert report from Morey violates Rule 19 26(a)(2)(B)’s most basic requirements. A retained expert must provide a signed 20 written report containing “a complete statement of all opinions the witness will 21 express and the basis and reasons for them,” along with the facts considered, 22 qualifications, and compensation. Fed. R. Civ. P. 26(a)(2)(B). Chicago Title offers no 23 1 explanation—let alone substantial justification—for this complete failure over ten 2 months.
3 Even if Chicago Title had provided Morey’s report, Morey cannot properly 4 testify as an expert about work he did not perform. The desk survey bears 5 Forrester’s name, not Morey’s. Forrester never provided an expert report, leaving 6 her methods, data sources, and analytical basis entirely unknown. Without this 7 foundational information, Morey would necessarily have to rely on hearsay or 8 speculation to explain Forrester’s work—testimony that is impermissible under
9 both the Federal Rules of Evidence and established expert witness practice. 10 Courts consistently prohibit one expert from serving as a “mouthpiece” for 11 another expert’s conclusions. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 12 398, 409 (6th Cir. 2006) (“reject[ing] any argument that Rule 703 extends so far as 13 to allow an expert to testify about the conclusions of other experts.”). While 14 substitution of experts may be permitted when the original becomes unavailable, 15 the substitute’s testimony must be “substantially similar” to what the original
16 expert would have provided. Stratton v. Thompson/ Ctr. Arms, Inc., 608 F. Supp. 3d 17 1079, 1088 (D. Utah 2022) (prohibiting substitute expert from testifying based on 18 computer modeling where deceased original expert had not employed such 19 techniques). The substitute cannot use “new methods that the original expert did 20 not use.” Id. 21 Chicago Title states Morey “has access to the survey files, reviewed the files,
22 and will testify that the survey illustrates the location of two different easements.” 23 Dkt. No. 187 at 2. This is precisely the type of impermissible mouthpiece 1 testimony—Morey would be reviewing and conveying another surveyor’s work 2 rather than explaining work he performed using methods substantially similar to
3 Forrester’s unknown approach. 4 Chicago Title has not shown substantial justification or harmlessness for its 5 Rule 26 violations. Plaintiffs remain prejudiced by the absence of any expert report 6 detailing Morey’s opinions. With trial set for October 6, 2025, this prejudice cannot 7 be cured without continuing trial—something the Court will not do again. 8 While Morey cannot testify as an expert witness, he may testify as a fact
9 witness that True North conducts surveys, that the survey data is a business 10 record, the desk survey was performed by his company, and that the desk survey 11 was performed using that data and then provided to Chicago Title. Given that 12 Plaintiffs stipulate to the survey’s authenticity and admissibility, Morey’s testimony 13 may not be necessary to establish foundation for the exhibit. 14 3.3 Ken Shipley must also be excluded. 15 Shipley’s disclosure suffers from multiple fatal defects. First, it was untimely. 16 Rule 26(a)(2)(D)(ii) requires rebuttal expert disclosures within 30 days of the initial 17 expert disclosure. Chicago Title received Johnson’s report on June 22, 2025, but did 18 not disclose Shipley until August 5, 2025—44 days later. Dkt. No. 177 at 13–18, 34. 19 Second, Chicago Title’s assertion that “Shipley is not required to provide a 20 written report” is legally baseless. Shipley is unquestionably a retained expert who 21 regularly provides expert testimony and advertises such services. Id. at 42.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2
3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 LAKHAN JHA and MINAKSHI CASE NO. 2:23-cv-00584 8 KUMARI, ORDER GRANTING PLAINTIFFS’ 9 Plaintiffs, MOTION TO EXCLUDE CHICAGO TITLE’S EXPERT WITNESSES 10 v. 11 CHICAGO TITLE INSURANCE COMPANY, 12 Defendant. 13
14 1. INTRODUCTION 15 This case involves a dispute over title insurance coverage for an easement 16 affecting Plaintiffs’ property. The parties’ expert disclosures have been marked by 17 repeated failures to comply with Federal Rule of Civil Procedure 26. This matter 18 comes before the Court on Plaintiffs’ Motion to Exclude Chicago Title’s Expert 19 Witnesses Due to Discovery Violation and Improper Expert Witness Disclosures. 20 Dkt. No. 176. Having reviewed the motion, response, reply, and relevant portions of 21 the record, the Court GRANTS the motion. 22 23 1 2. BACKGROUND 2 On November 4, 2024, Chicago Title disclosed Christopher Morey, a surveyor
3 with True North Land Surveying, Inc., as an expert witness. Dkt. No. 177 at 7–8. 4 The disclosure included an unsigned desk plot survey dated September 23, 2021, 5 bearing the name and professional stamp of Eileen M. Forrester, not Morey. Id. at 6 11–12. Forrester created the desk plot survey for True North but retired at some 7 point between September 2021 and November 2024. Dkt. No. 187 at 2. Chicago Title 8 represents that Morey “remains employed by True North, has access to the survey
9 files, reviewed the files, and will testify that the survey illustrates the location of 10 two different easements on Plaintiffs’ property.” Id. To date, Chicago Title has not 11 provided a signed expert report from Morey. 12 Plaintiffs disclosed their surveying expert, Robert Johnson, on December 11, 13 2024, and provided his expert report on June 22, 2025—well after the December 5, 14 2024, disclosure deadline. In a separate order, the Court granted Chicago Title’s 15 motion to exclude Johnson based on the untimely disclosure of his report.
16 On August 5, 2025—over forty days after receiving Johnson’s report— 17 Chicago Title disclosed Ken Shipley as another expert witness without providing a 18 report, claiming none was required. Dkt. No. 177 at 34. Shipley was designated to 19 rebut Johnson’s testimony about survey method and property valuation. Id. 20 21
22 23 1 3. DISCUSSION 2 3.1 Legal standard. Under Rule 37(c)(1), a party who fails to provide information required by 3 Rule 26(a) “is not allowed to use that information or witness to supply evidence … 4 at a trial, unless the failure was substantially justified or is harmless.” This 5 exclusion operates as a “‘self-executing’, ‘automatic’” sanction designed to provide “‘a 6 strong inducement for disclosure.’” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 7 F.3d 1101, 1106 (9th Cir. 2001) (quoting Fed.R.Civ.P. 37 advisory committee’s note 8 (1993). The party facing sanctions bears the burden of proving substantial 9 justification or harmlessness. Goodman v. Staples the Off. Superstore, 644 F.3d 817, 10 827 (9th Cir. 2011). 11 12 3.2 Christopher Morey must be excluded as an expert. 13 The Court notes that Plaintiffs waited ten months after Morey’s November 14 2024 disclosure to challenge his designation, creating an avoidable eve-of-trial 15 emergency through either oversight or tactical calculation. While the Court does not 16 condone such dilatory litigation tactics, Chicago Title’s Rule 26 violations warrant 17 exclusion nonetheless. 18 Chicago Title’s failure to provide any expert report from Morey violates Rule 19 26(a)(2)(B)’s most basic requirements. A retained expert must provide a signed 20 written report containing “a complete statement of all opinions the witness will 21 express and the basis and reasons for them,” along with the facts considered, 22 qualifications, and compensation. Fed. R. Civ. P. 26(a)(2)(B). Chicago Title offers no 23 1 explanation—let alone substantial justification—for this complete failure over ten 2 months.
3 Even if Chicago Title had provided Morey’s report, Morey cannot properly 4 testify as an expert about work he did not perform. The desk survey bears 5 Forrester’s name, not Morey’s. Forrester never provided an expert report, leaving 6 her methods, data sources, and analytical basis entirely unknown. Without this 7 foundational information, Morey would necessarily have to rely on hearsay or 8 speculation to explain Forrester’s work—testimony that is impermissible under
9 both the Federal Rules of Evidence and established expert witness practice. 10 Courts consistently prohibit one expert from serving as a “mouthpiece” for 11 another expert’s conclusions. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 12 398, 409 (6th Cir. 2006) (“reject[ing] any argument that Rule 703 extends so far as 13 to allow an expert to testify about the conclusions of other experts.”). While 14 substitution of experts may be permitted when the original becomes unavailable, 15 the substitute’s testimony must be “substantially similar” to what the original
16 expert would have provided. Stratton v. Thompson/ Ctr. Arms, Inc., 608 F. Supp. 3d 17 1079, 1088 (D. Utah 2022) (prohibiting substitute expert from testifying based on 18 computer modeling where deceased original expert had not employed such 19 techniques). The substitute cannot use “new methods that the original expert did 20 not use.” Id. 21 Chicago Title states Morey “has access to the survey files, reviewed the files,
22 and will testify that the survey illustrates the location of two different easements.” 23 Dkt. No. 187 at 2. This is precisely the type of impermissible mouthpiece 1 testimony—Morey would be reviewing and conveying another surveyor’s work 2 rather than explaining work he performed using methods substantially similar to
3 Forrester’s unknown approach. 4 Chicago Title has not shown substantial justification or harmlessness for its 5 Rule 26 violations. Plaintiffs remain prejudiced by the absence of any expert report 6 detailing Morey’s opinions. With trial set for October 6, 2025, this prejudice cannot 7 be cured without continuing trial—something the Court will not do again. 8 While Morey cannot testify as an expert witness, he may testify as a fact
9 witness that True North conducts surveys, that the survey data is a business 10 record, the desk survey was performed by his company, and that the desk survey 11 was performed using that data and then provided to Chicago Title. Given that 12 Plaintiffs stipulate to the survey’s authenticity and admissibility, Morey’s testimony 13 may not be necessary to establish foundation for the exhibit. 14 3.3 Ken Shipley must also be excluded. 15 Shipley’s disclosure suffers from multiple fatal defects. First, it was untimely. 16 Rule 26(a)(2)(D)(ii) requires rebuttal expert disclosures within 30 days of the initial 17 expert disclosure. Chicago Title received Johnson’s report on June 22, 2025, but did 18 not disclose Shipley until August 5, 2025—44 days later. Dkt. No. 177 at 13–18, 34. 19 Second, Chicago Title’s assertion that “Shipley is not required to provide a 20 written report” is legally baseless. Shipley is unquestionably a retained expert who 21 regularly provides expert testimony and advertises such services. Id. at 42. Rule 22 26(a)(2)(B) mandates a written report from retained experts. 23 1 Finally, and perhaps most relevant, having excluded Plaintiffs’ expert 9 Johnson for disclosure violations, there is nothing for Shipley to rebut. The Court
3 must apply Rule 37(c)(1) consistently to both parties. Johnson was excluded for
4 providing his report six months late and being deposed after court deadlines.
5 Fundamental fairness requires that Chicago Title’s experts face the same automatic
g |/sanctions for their Rule 26 violations.
7 4. CONCLUSION
8 In sum, Plaintiffs’ Motion is GRANTED. Dkt. No. 176. Christopher Morey 9 may not testify as an expert witness at trial, but he may provide limited fact
10 testimony. Ken Shipley is EXCLUDED entirely. 11 12 Dated this 25th day of September, 2025.
13 14 C Amal N. Whitehead United States District Judge 15 16 17 18 19 20 21 22 23 ORDER GRANTING PLAINTIFFS’ MOTION TO EXCLUDE CHICAGO TITLE’S EXPERT