A participant in a doctoral program sued his university, alleging that his termination from the program was based on his post-traumatic stress disorder (PTSD) and in violation of the Americans with Disabilities Act (ADA). One of the issues on appeal was the exclusion of the Plaintiff’s expert witnesses as they were untimely disclosed and not in compliance with the Federal Rules. On appeal to the Seventh Circuit, Plaintiff argued that he did comply with all of the pretrial orders of the magistrate, and even though those orders didn’t mention further expert deadlines, he said it was implied that they were included.
Plaintiff, previously diagnosed with post-traumatic stress disorder (“PTSD”) as an undergrad, was admitted into the university’s doctoral program. After an initial period of study, all of the doctoral students were required to pass a three-part Preliminary Examination in order to continue and become a candidate for a doctoral degree. After numerous delays and attempts, Plaintiff repeatedly failed to pass the third portion of the exam and was dismissed from the program.
At trial, the Plaintiff requested that the district court extend the time for discovery on numerous occasions, but did not ask to extend the time for the disclosure of experts. The magistrate judge granted Plaintiff’s request and set new deadlines for discovery and the filing of dispositive orders—but the order didn’t mention extending the time for the disclosure of experts. The day that discovery was to end, Plaintiff’s counsel sent defense counsel two emails purporting to be disclosures of his expert witnesses. The emails attached letters signed by counsel for Plaintiff, rather than the experts, and contained bulleted lists of the content of their testimony. Neither of Plaintiff’s experts submitted a signed, written report.
The magistrate judge granted Defendants’ motion to exclude Plaintiff’s experts. Plaintiff sought review of the magistrate’s order, but the district court adopted the magistrate’s order and also granted Defendants’ motion for summary judgment. Plaintiff appealed. He claimed that the district court erred in granting the Defendant’s motion to exclude his expert witnesses.
The Seventh Circuit Court of Appeals Circuit Judge Kenneth Francis Ripple wrote in his opinion for a three-judge panel that Federal Rule of Civil Procedure 26(a)(2) requires parties to timely disclose their expert witnesses in accordance with any deadlines set by the district court. The rule further requires parties to disclose a “written report,” “prepared and signed by the witness,” and containing the following:
(i) a complete statement of all opinions the witness will express and their basis and reasons;
(ii) facts or data considered by the witness in forming them;
(iii) exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Judge Ripple further noted that Federal Rule 37(c)(1) states that failure to comply with the disclosure requirements of Rule 26(a) results in automatic and mandatory exclusion of the proffered expert witness “unless the failure was substantially justified or is harmless.”
In this case, Plaintiff’s email disclosure of his experts didn’t include the information required under Rule 26(a)(2)(B)(i), (iii), (iv), (v), or (vi), the judge held. What was more, Plaintiff disclosed these witnesses over a year after the court’s deadline for expert witnesses. As such, the district court determined that these errors were neither substantially justified nor harmless.
Plaintiff argued on appeal that the email disclosure was timely because, after initially setting the deadline for expert witness disclosures, the court later entered an order, stating that “[a]ll present deadlines and hearings are stricken.” Plaintiff also contended that any other deficiencies in his disclosures were harmless because he was in substantial compliance with Rule 26. Judge Ripple said not even close. Plaintiff’s arguments were without merit, as his timeliness argument took the district court’s action out of context.
The failure of Plaintiff’s disclosures to conform substantially to the requirements of Rule 26 provided an independent basis for the district court’s exclusion order, Judge Ripple explained, as the Plaintiff didn’t dispute the existence of these deficiencies. Instead, he argued that they were harmless because his disclosures were in substantial compliance with Rule 26(a)(2) and relied on the Seventh Circuit’s decision in Jenkins v. Bartlett (2007). In Jenkins, Judge Ripple said, the Court determined that a district court had not abused its discretion by allowing for the admission of a party’s experts, even though that party’s Rule 26(a) disclosure was prepared and signed by the attorney rather than the proffered experts. In that case, the absence of the witnesses’ signatures was the “main defect” in the defendants’ disclosure. Because the witnesses later submitted affidavits adopting the contents of the attorney’s letter, the Seventh Circuit held that the disclosure substantially complied with Rule 26(a) and that any shortcomings in the defendants’ disclosure were harmless.
Like the defendants in Jenkins, the judge noted that the Plaintiff’s expert witnesses submitted affidavits that looked to remedy most of the substantive deficiencies in Plaintiff’s initial disclosure; but this didn’t cure Plaintiff’s earlier noncompliance with Rule 26. Unlike Jenkins, however, where the main deficiency was the absence of signatures, Plaintiff’s initial disclosure failed to comply with almost every requirement of Rule 26(a)(2)(B). With this, the Seventh Circuit affirmed the ruling of the district court.