Compliance with Rule 26(a) of Federal Rule of Civil Procedure – a sine qua non for inclusion of expert witnesses

Failure to comply with the disclosure requirements of Rule 26(a) of Federal Rule of Civil Procedure results in automatic and mandatory exclusion of the proffered witness “unless the failure was substantially justified or harmless” [Fed. R. Civ. P. 37(c)(1)] ruled the Seventh Circuit in Patrick Novak v. Board of Trustees of Southern Illinois University 2015 U.S. App. LEXIS 2090

 Patrick Novak, a student of the Southern Illinois University’s Curriculum and Instruction department’s doctoral program had post-traumatic stress disorder (“PTSD”). As per the norms of the University all doctoral students are obligated to pass a Preliminary Examination consisting of three “Days” in order to continue and become a candidate for a doctoral degree. Novak cleared the Day 1 exam on his first attempt, Day 2 on his second attempt but failed to clear Day 3 even after four attempts. Considering Novak’s recurrent failure to pass Day 3, the C&I Department terminated his participation in the doctoral program and offered to convert his doctoral credits into a master’s degree. Mr. Novak accepted the department’s offer and became the recipient of a master’s degree in May 2011.

 In January, 2012 Novak instituted an action in the District Court for the Southern District of Illinois against the University and three of its professors on the ground that he had been terminated from the  doctoral program on the basis of his PTSD, in violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

The District Court gave a scheduling and discovery order that required the plaintiff to make known any expert witnesses on or before October 1, 2012. The order also required the parties to file any dispositive motions on or before December 15, 2012. On November 9, 2012 the magistrate judge rescheduled the deadlines for discovery and the filing of dispositive motions and ordered that that “all present deadlines and hearings are stricken.” However, the order made no reference to extending the time for the disclosure of experts.

On the plaintiff’s request, the magistrate judge yet again set new deadlines for discovery and the filing of his dispositive orders, but neither did the plaintiff plead to extend the time for the disclosure of experts nor did the order make any such reference. On December 16, 2013 the day the discovery in the case was to be concluded, the plaintiff’s counsel sent two emails to the defense counsel containing purported disclosures of the plaintiff’s two expert witnesses with letters signed by the plaintiff’s counsel rather than the proposed experts and contained bulleted lists of the content of their testimony.

The defendants filed their motion for summary judgment, and one to exclude plaintiff’s experts.
The magistrate judge granted the defendants’ motion to exclude plaintiff’s experts. The District Court adopted this order despite the plaintiff’s request for review. The plaintiff accordingly preferred an appeal before the Seventh Circuit alleging abuse of discretion on the part of the District Court in granting the defendant’s motion to exclude his expert witnesses.

 At the outset the Appellate Court recounted the essentials of Federal Rule of Civil Procedure 26(a)(2) which requires parties to make timely disclosures of their expert witnesses in accordance with any deadlines set by the District Court and inter alia the requirement of disclosing a “written report, prepared and signed by the witness,” and containing several other details.

 The disclosures of the plaintiff’s experts did not include the information required under Rule 26(a)(2)(B). Further, the witnesses were revealed after more than a year had elapsed from the court’s deadline but the plaintiff was aware of the witnesses since he had listed them as potential experts in his May 2012 interrogatory responses. Moreover, the deferred disclosures had destroyed the defendants’ opportunity of challenging the admission of their testimony under Daubert  509 U.S. 579, (1993), besides precluding their chance of identifying opposing experts.

The plaintiff claimed his December 2013 disclosure to be timely since the court had ordered – “all present deadlines and hearings are stricken.”  Seventh Circuit found this argument lacking in merit since the only deadline ever announced by the District Court for the disclosure of expert witnesses was in its April 18 order that enlisted separate dates for the close of discovery and for the disclosure of expert witnesses.

 The plaintiff felt that other deficiencies in his disclosures were harmless because he had substantially complied with Rule 26. He relied on the decision of the Seventh Circuit in Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007), where the Court had not found the District Court guilty of abusing its discretion, in allowing the admission of a party’s experts, even though that party’s Rule 26(a) disclosure was prepared and signed by the attorney and not the proffered experts. The Seventh Circuit reiterated that in Jenkins the absence of the witness’s signature was the ‘primary flaw’ in the defendant’s disclosure. Since both the witnesses had subsequently submitted affidavits which reflected the contents of the attorney’s letter, it had determined that the disclosure had substantially complied with Rule 26(a) and any failings in the defendant’s disclosure were harmless.

Seventh Circuit further ruled that akin to the defendants in Jenkins, plaintiff’s expert witnesses had submitted affidavits that seemed to remedy the noteworthy deficiencies in the disclosure, but in contrast to Jenkins, the plaintiff’s initial disclosure failed to comply with almost every requirement of Rule 26(a)(2)(B). Hence, the Appellate Court emphasized on the point that although Jenkins indicated that minor errors in a Rule 26(a) disclosure, may be exempted , it did not imply that a District Court should allow parties to make belated attempts of mending a disclosure that significantly fall short of Rule 26(a).

 Seventh Circuit thereby affirmed the decision of the District Court of refusing to accept the plaintiff’s inopportune submission.