United States District Court, D. South Dakota, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE AND
GRANTING IN PART AND DENYING IN PART MOTION TO QUASH OR
MODIFY SUBPOENAS AND OBJECTIONS AND MOTION FOR
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Christopher Koltz, filed three motions in limine, including a
motion to preclude any testimony of Dr. Douglas Martin as a
late-disclosed expert. Docket 37. Dr. Martin has filed a
motion to quash or modify subpoenas and objections and a
motion for sanctions. Docket 53. Plaintiff filed a response.
Docket 54. Defendant, Daniel Haws, III, also filed a response
in opposition to Dr. Martin's motion. Docket 56. For the
following reasons, the court grants plaintiff's third
motion in limine, grants Dr. Martin's motion to quash the
subpoenas, and denies Dr. Martin's motion for sanctions.
about March 9, 2018, defendant subpoenaed Dr. Martin to
produce his current curriculum vitae and a list of cases in
which Dr. Martin has testified during the past 4 years by
April 3, 2018 at 10:00 a.m. under Fed.R.Civ.P. 26. Docket
53-3. Defendant also subpoenaed Dr. Martin to testify at the
trial for this matter on April 11, 2018. Docket 53-4.
Plaintiff then subpoenaed Dr. Martin to appear at a
deposition on April 3, 2018. Docket 53-5. Dr. Martin moves to
quash all three subpoenas because the information being
sought is the attorney work product of the South Dakota
Bureau of Human Resources. Docket 53.
has so far filed three motions in limine in this case. The
third motion in limine seeks to preclude Dr. Martin from
testifying because defendant disclosed Dr. Martin as an
expert on March 19, 2018. See Dockets 37, 38. In
response, defendant states that he did not receive Dr.
Martin's IME report until plaintiff provided it to
defendant on March 8, 2018. Docket 49.Plaintiff relies
on Federal Rule of Civil Procedure 26 to preclude Dr. Martin
from testifying as defendant's expert.
first provides, “[u]nless otherwise stipulated or
ordered by the court, [an expert's] disclosure must be
accompanied by a written report” that contains the
witness's opinions and the basis and reasons for those
opinions, facts considered in forming those opinions,
exhibits that will be used to support those opinions, the
witness's qualifications, a list of other cases during
the last four years in which the witness testified as an
expert, and a statement of the witness's compensation.
Fed.R.Civ.P. 26(a)(2)(B). Rule 26 also states, in pertinent
part, that “[a] party must make these disclosures at
the times and in the sequence that the court orders.”
court issued its first scheduling order in this case on
December 15, 2016. Docket 14. The scheduling order stated
that the identity of and report from defendant's retained
expert under Rule 26(a)(2) was due by May 17, 2017, and any
supplements would be due twenty days before trial.
Id. The scheduling order also articulated that
“[a]ny expert not so designated will not be permitted
to testify at trial[, ]” and the expert disclosures
“will be accompanied by a written report prepared and
signed by the witness” with the Rule 26(a)(2)(B)
requirements. Id. While the parties jointly moved to
extend certain deadlines in the scheduling order, the parties
did not move to extend the expert disclosure deadlines.
See Dockets 19, 20.
defendant did not comply with the court's scheduling
order or Rule 26 of the Federal Rules of Civil Procedure. Dr.
Martin was disclosed as defendant's designated expert on
March 19, 2018, but the deadline was May 17, 2017. Because
the deadline has already passed, defendant must show
excusable neglect for the late disclosure. Fed.R.Civ.P.
6(b)(1)(B). Defendant has not provided any evidence to the
court that he took any steps to secure an expert witness
prior to the disclosure deadline. He has not shown either
excusable neglect or good cause for failure to meet the
deadline. See Mullen v. Heinkel Filtering Sys.,
Inc., 2013 WL 4766785 (N.D. Iowa Sept. 4, 2013).
case is currently scheduled to begin a jury trial on April
10, 2018. Defendant has not disclosed Dr. Martin's
opinions, qualifications, or a list of cases in which he has
testified during the last 4 years, as is required by
Fed.R.Civ.P. 26 and this court's scheduling order. Thus,
the court finds that in light of defendant's very late
disclosure of his designated expert's identity-namely,
only a few weeks before trial-the appropriate sanction here
is to preclude Dr. Martin from testifying as defendant's
expert at trial. See Kirk v. Schaeffler Group USA,
Inc., 2016 WL 868853, at *1-2 (W.D. Mo. Mar. 7, 2016)
(barring defendants from calling their designated expert as a
witness because the expert was disclosed after the scheduling
order deadline and would prejudice plaintiff); Anderson
v. Bristol, Inc., 936 F.Supp.2d 1039, 1060 (S.D. Iowa
2013) (concluding plaintiff's expert disclosures did not
comply with Rule 26 and limiting the expert's opinion
testimony as a sanction). Because he cannot testify at trial,
plaintiff does not need to depose Dr. Martin as
defendant's expert witness. Thus, it is
that plaintiff's third motion in limine (Docket 37) is
FURTHER ORDERED that Dr. Martin's motion (Docket 53) is
granted in part and denied in part. The court grants Dr.
Martin's motion to quash the three subpoenas and denies
Dr. Martin's motion for sanctions.
 In response to Dr. Martin's Motion
to Quash, plaintiff states that the South Dakota Bureau of
Human Resources required plaintiff to attend the IME
performed by Dr. Martin on February 7, 2018. Docket 54.
Plaintiff then had to subpoena the Bureau in order to obtain
plaintiff's workers' compensation ...