United States District Court, W.D. Arkansas, Fayetteville Division
RON and LAUREN PARRISH, as Parents of L; VICTOR and LAURA CRAIG, as Parents of A; MICHAEL and CHASTIDY LAWS, as Parents of G; and RACHELLE SIVERLY, as Parents of S PLAINTIFFS
BENTONVILLE SCHOOL DISTRICT; MAUREEN BRADSHAW, District SPED Coordinator; ARKANSAS DEPARTMENT OF EDUCATION; and JOHNNY KEY, Commissioner DEFENDANTS
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendants Bentonville School District
(“BSD”), Tanya Sharp,  and Maureen Bradshaw's
(collectively, the “District Defendants”) motion
(Doc. 113) for relief under Rule 37(c)(1). Plaintiffs have
filed a response (Doc. 114) and brief in support (Doc. 115).
The District Defendants have filed a reply (Doc. 120) with
leave of the Court. Plaintiffs have also filed a supplement
(Doc. 117) to their response. The supplement follows the
outline for an initial response to a discovery dispute
required by the final scheduling order, and its usefulness as
an initial response is diminished here, in that it was filed
two days after the full response. Plaintiffs also filed a
second supplement (Doc. 118), which includes as an exhibit
“a relevant portion of Dr. [Howard] Knoff's
Report.” (Doc. 118, p. 2). Plaintiffs did not request
leave to file this supplement. The Court will consider the
“initial response” information in the first
supplement (Doc. 117) and the exhibit (Doc. 118-1) attached
to the second supplement, but will not consider any arguments
raised in either supplement. For the reasons set forth below,
the Court will grant the District Defendants' motion to
exclude from trial any testimony or opinions offered by Dr.
District Defendants argue that Dr. Knoff's testimony and
opinions should be excluded because his Rule 26(a)(2)
disclosures were not timely made under the Court's
scheduling order. Plaintiffs respond that the Court's
scheduling order did not explicitly set a deadline for expert
disclosures, and so the default timing under the Federal
Rules of Civil Procedure applies. Rule 26(a)(2)(D) requires
that “[a]bsent a stipulation or a court order, the
[expert] disclosures must be made: (i) at least 90 days
before the date set for trial or for the case to be ready for
the parties did not raise the matter of expert witnesses in
their Rule 26(f) report, neither of the Court's final
scheduling orders in this case sets out expert disclosure
deadlines separately from the general discovery deadline.
However, the Court's final scheduling order mandates that
“[a]ll discovery must be completed no
later than March 8, 2016.” (Doc. 34, ¶ 2 (emphasis
added)). The Court's amended final scheduling order sets
out an identical mandate for completion of discovery, except
that the deadline set was August 2, 2016. (Doc. 92, ¶
2). Each final scheduling order allowed that discovery could
be conducted beyond the deadline, but only “if all
parties are in agreement to do so.” (Docs. 34, ¶
2; 92, ¶ 2).
in this matter was initially set for April 11, 2016.
Following the joint Rule 26(f) report, trial was reset for
June 6, 2016. Plaintiffs identified Dr. Knoff as a potential
expert witness on February 8, 2016, but they did not provide
his report to the District Defendants prior to the initial
close of discovery on March 8, 2016, and so would not have
been able to utilize Dr. Knoff had trial remained set for
June 6, 2016. The Court then reset the trial date for October
31, 2016, and set the new discovery deadline of August 2,
2016. The Court also mooted the District Defendants'
then-pending motion addressing Plaintiffs' failure to
disclose Dr. Knoff's report. Late on August 1, 2016-one
day before the discovery deadline and 91 days before
trial-Plaintiffs first disclosed Dr. Knoff's report.
(Docs. 115-5 (filed at 9:28 PM); 115-9). Plaintiffs argue
that this disclosure was timely.
expert may be deposed until after disclosure of his report.
Fed.R.Civ.P. 26(b)(4)(A). Following disclosure of an expert
report, another party may provide a rebuttal expert's
report within 30 days. Fed.R.Civ.P. 26(a)(2)(D)(ii). Neither
a deposition of Dr. Knoff nor disclosure of a rebuttal
report-both matters of discovery-reasonably could have
occurred before the discovery deadline. Plaintiffs'
decision not to disclose Dr. Knoff's report until the eve
of the discovery deadline did not allow “all
discovery” to be completed by August 2, 2016, as
ordered by the Court, and the disclosure was therefore
default consequence for failure to timely disclose the expert
report is exclusion of the expert, “unless the failure
was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). Plaintiffs failed to disclose Dr.
Knoff's report at all during the initial discovery
period, and also failed to timely disclose the report during
the rescheduled discovery period. Their excuse that they did
not themselves receive Dr. Knoff's report until minutes
before they disclosed it to Defendants is not a substantial
justification for untimely disclosure; nor is the untimely
disclosure harmless. The reasons for requiring expert reports
are “the elimination of unfair surprise to the opposing
party and the conservation of resources.”
Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d
277, 284 (8th Cir. 1995). Allowing an expert whose report was
not timely disclosed and who could not be deposed as to that
report to act as a witness would leave Defendants vulnerable
to surprise testimony at trial. And extending discovery and
pushing back trial yet again in this case, which has been
characterized by its docket cluttered with discovery
disputes, is unlikely to conserve resources. The Court will
exclude Dr. Knoff's testimony and opinion. To do
otherwise would ignore the admonition that the Rules
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1.
THEREFORE ORDERED that the District Defendants' motion
for relief (Doc. 113) is GRANTED, and Dr. Knoff's
testimony and opinions are excluded from consideration on
motions, at hearings, and at trial.
FURTHER ORDERED that the District Defendants' motion to
exclude (Doc. 131) is DENIED AS MOOT.
 Tanya Sharp was dismissed from this
action by the Court's April 28, 2016, opinion and order
because the Court found she was entitled to qualified