The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTIONS TO STRIKE PLAINTIFF'S [DOCKET NOS. 61, 64]
This matter is before the court on plaintiff Dr. James H. Oury's complaint alleging age discrimination, in violation of the Age Discrimination in Employment Act of 1967, (Pub. L. 90-202), 29 U.S.C. § 621 et seq. (the "ADEA"); and defamation, tortious interference with business relationships, and abuse of peer review, in violation of South Dakota state law. Docket No. 1. The court has original federal question jurisdiction over Dr. Oury's age discrimination claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
On January 13, 2011, defendants Rapid City Regional Hospital, Inc., Regional Health Network, Inc., and Regional Health Physicians, Inc. (collectively "Rapid City Regional Hospital"), moved the court for an order prohibiting Dr. Oury from calling expert witnesses and introducing expert opinions. Docket No. 61. On January 17, 2011, defendant Cardiology Associates, P.C. ("Cardiology Associates") joined Rapid City Regional Hospital's motion to strike Dr. Oury's experts. Docket No. 64. The district court, the Honorable Jeffrey L. Viken, referred the defendants' respective motions to strike [Docket Nos. 61, 64] to this court for resolution, pursuant to 28 U.S.C. § 636(b)(1)(A).
The facts, insofar as they are pertinent to the defendants' motions to strike, are as follows. The action was commenced on July 7, 2009. Docket No. 1. On January 20, 2010, Dr. Oury's counsel sought to withdraw from representation but had made no initial disclosures under Rule 26. The district court's Rule 16 scheduling order had set the deadline for Rule 26 disclosures at December 1, 2009. Docket No. 15. The defendants did not object to counsel's motion to withdraw, but expressed concern about the plaintiff's lack of compliance with the scheduling order and Rule 26, as well as the inevitable delay that the necessity of new counsel would cause all the parties. Docket Nos. 17, 18. Before permitting Dr. Oury's counsel to withdraw, the district court required Dr. Oury to find substitute counsel by June 1, 2010. Docket No. 23.
On July 6, 2010, plaintiff's current counsel made an appearance on behalf of Dr. Oury, which appearance was conditional upon counsel's request to the district court that it modify the scheduling order, in order to accommodate counsel's trial schedule. Docket No. 25. On July 26, 2010, the district court substituted plaintiff's former counsel with his current counsel, Gregory Yates and Michael Shubeck. Docket No. 32. On the same date, the district court issued a revised scheduling order. Docket No. 33. Under the new scheduling order, Dr. Oury was to disclose the identity of his retained experts and reports from those experts, in accordance with Rule 26(a)(2), by December 1, 2010. Id.
All parties to the action were joined on September 14, 2010. Docket
No. 35.*fn1 On October 7, 2010, Dr. Oury issued amended
notices of depositions and demands for production of
documents.*fn2 See Docket Nos. 47-49. The
defendants objected to the discovery requests and did not provide
answers, because the requests did not comply with Rule 34.*fn3
Docket Nos. 52-54.
Dr. Oury's counsel revised the requests and served them as requests for production on October 28, 2010. Docket No. 68, Affidavit of Michael Shubeck ("Aff. of M. Shubeck"), ¶3; Docket No. 68-2, Plaintiff's Requests for Production (First Set). The requests for production ("RFPs") made eighteen requests, including the three requests previously issued on October 7, 2010, and new requests for documents which Dr. Oury asserts are necessary to the testimony and reports of his experts.*fn4
All parties had answered the amended complaint by November 10, 2010. Docket Nos. 56, 57. On November 30, 2010, Dr. Oury designated his retained experts, Dr. Ralph Brown, Ph.D., and Dr. Lawrence Huntoon, Ph.D. Docket No. 58. However, Dr. Oury did not provide expert reports, as required by Rule 26(a)(2) and the district court's scheduling order. Id. On December 1, 2010, Dr. Oury's counsel requested that the defendants stipulate to an extension of time for disclosure of Dr. Brown's report. Docket No. 68-9. Dr. Oury's counsel asserted that he had not received information from the defendants responsive to RFP 14, and that that information was necessary in order for Dr. Brown to complete his report. Id. Counsel for Cardiology Associates responded that he had no responsive information, but would agree with whatever course of action plaintiff's and defense counsel decided was appropriate. Id. Rapid City Regional Hospital's counsel agreed to an extension of time, but asked how much additional time was necessary. Id. Defense counsel apparently received no immediate response.
The defendants responded to Dr. Oury's RFPs on December 2, 2010. See
Docket No. 68-3. Dr. Oury asserts that these responses contained the
financial information he had requested, but did not contain documents
pertaining to the peer review of Dr. Oury, as the parties were
negotiating a protective order on this information.*fn5
Docket No. 68, Aff. of M. Shubeck, ¶4. Rapid City Regional
Hospital supplemented its responses on December 15, 2010, with
information responsive to Dr. Oury's requests for documents pertaining
to the peer review. Docket No. 68-4.
Dr. Oury's expert economist, Dr. Brown, then advised that he required additional documentation to complete his economic loss appraisal for Dr. Oury. See Docket No. 68-6. Dr. Oury twice attempted to personally obtain the necessary documentation through the Rapid City Regional Hospital financial department. Docket No. 68, Aff. of M. Shubeck, ¶8; Docket No. 68-7. Dr. Oury also attempted to obtain financial documentation from his personal accountant, but the accountant expressed concerns that he would be required to testify adversely to Rapid City Regional Hospital. Docket No. 68, Aff. of M. Shubeck, ¶9. After some clarification about his role in gathering the information, the accountant agreed to compile the requested financial records. Id.
On December 16, 2010, defense counsel inquired again as to the date Dr. Oury's expert report by Dr. Brown would be disclosed. See Docket No. 68-10. On December 20, 2010, Dr. Oury represented that he would stipulate to an extension of time for defendants' expert disclosure deadline, given that Dr. Oury's expert reports had still not been disclosed to the defendants. Id.
Dr. Oury stated that the delay resulted from his inability to obtain certain documents, as well as the lateness of defendants' discovery responses, which were dated December 2, 2010, and December 15, 2010. Id. Dr. Oury informed defendants that his economist, Dr. Brown, had still not yet completed his report, and that his peer review expert, Dr. Huntoon, would not disclose his report until the close of factual discovery.*fn6 Dr. Oury explained that the reason for non-disclosure of Dr. Huntoon's report was because Dr. Huntoon would be "commenting on the facts of the case, including the depositions of witnesses," which had not yet been taken. Id.
On January 13, 2011, having received none of Dr. Oury's expert reports nor any deadline by which it might expect the reports, defendant Rapid City Regional Hospital filed its motion to strike Dr. Oury's experts and expert reports. Docket No. 61. The defendant cited Dr. Oury's failure to comply with Rule 26 and the district court's scheduling order, and suggested that an appropriate sanction for the noncompliance is exclusion of Dr. Oury's experts and their reports. Docket No. 62. On January 17, 2011, Cardiology Associates joined in Rapid City Regional Hospital's motion to strike, citing the same reasons and suggesting the same sanction. Docket Nos. 64, 65.
Dr. Oury resists the motions to strike, on grounds that the non-disclosure of expert reports was not in bad faith and was substantially justified; and because the defendants have not been prejudiced by the non-disclosure. Docket No. 67. The court now turns to the parties' respective arguments in favor of, and opposing, the defendants' motions to strike.
A. Pretrial Disclosure of Experts Pursuant to Federal Rule 26 Rule 26(a)(2) requires parties to make pretrial disclosure, without a formal discovery request, of the identity of any person who may provide expert testimony at trial. If the expert witness is one "retained or specially employed to provide expert testimony," the witness must also prepare a signed, written report containing:
1. a complete statement of all opinions the witness will express and the basis ...