Wednesday, April 18, 2007

7th Circuit Discusses District Court's Decision to Strike Exert's Affidvait for Failure to Disclose Per Rule 26(a)(2)

Per Mannoia v. Farrow, 476 F.3d 453 (7th Cir. Feb. 7, 2007):

The district court granted Farrow's motion to strike because it found that Mannoia violated Federal Rule of Civil Procedure 26(a)(2) by failing to disclose the expert testimony to Farrow until after Farrow filed his motion for summary judgment. . . .

We review for an abuse of discretion the district court's decision to strike the expert's affidavit submitted by Mannoia in opposition to Farrow's motion for summary judgment. Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739, 745 (7th Cir.2005). Under this standard, decisions that are reasonable and not arbitrary will not be disturbed. Id. (citing Adusumilli v. City of Chi., 164 F.3d 353, 359 (7th Cir.1998)).

On October 13, 2005, the district court issued an order giving the parties until November 18, 2005 to conduct limited discovery on the issue of qualified immunity. During this time, the parties took depositions and exchanged written discovery requests. On December 1, 2005, after the discovery period had closed, Farrow filed his motion for summary judgment. In opposing that motion, Mannoia submitted the affidavit of a police procedures expert witness as an exhibit to his Local Rule 56.1 Statement. In the affidavit, the expert offered the opinion that “[n]o reasonably well trained police officer given the facts which Detective Farrow knew or which he could reasonably have obtained, would believe that there was probable cause to arrest Mr. Mannoia for the crime of child abduction.” Pl.'s Local Rule 56.1 Statement Ex. N at 3. Farrow moved to strike this affidavit and related portions of Mannoia's response memorandum, and the district court granted the motion concluding that Mannoia did not disclose the expert testimony as required by Federal Rule of Civil Procedure 26(a)(2), but waited until after Farrow filed his summary judgment motion.

Per Rule 26(a)(2), “a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.” Mannoia's argument that “there was no request” to disclose expert witnesses fails in light of Rule 26(a)(2)(C)'s requirement that such disclosures “be made at the times and in the sequence directed by the court.” It is undisputed that Mannoia did not disclose his expert witness within the time-frame provided in the district court's October 13 order. As for Mannoia's contention that he was unable to retain an expert until after the close of discovery when the deposition transcripts were prepared, it was his duty to seek relief from the court. In addition, Mannoia was required by Rule 26(e) to supplement his 26(a) disclosures of all individuals having discoverable information upon learning that his disclosures were incomplete. Mannoia does not contend that he did not consider the need to retain an expert during the discovery period. The district court's decision to strike Mannoia's expert witness affidavit and accompanying argument for non-compliance with Rule 26(a) was well within its discretion. See Fed.R.Civ.P. 37(c)(1) (A party who, without “substantial justification,” fails to make a disclosure required by Rule 26(a) cannot rely on the withheld evidence “at a trial, at a hearing, or on a motion.”). So, we affirm the district court on this ground.


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