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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

NO. CIV. S-04-633 LKK/CMK

Plaintiff,

v. O R D E R

PIER 1 IMPORTS (U.S.), INC.;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

In March of 2004, plaintiff Ronald Wilson (“plaintiff”) 

filed suit against defendant Pier 1 Imports (U.S.), Inc., and

Mellon/Pier 1 Properties Limited Partnership I (“defendants”).

Plaintiff asserts federal and state causes of action arising out

of allegedly inadequate accommodations provided for the physically

disabled in defendants’ store (“the store”). Pending 

before the court is plaintiff’s motion to strike defendants’ expert

disclosures.

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2

I. 

BACKGROUND

 This court’s Status Order filed on June 2, 2004 stated that

“all counsel are to designate in writing and file with the court

and serve upon all other parties a final list of the names of all

experts that they propose to tender at trial not later than sixty

(60) days before the close of discovery herein established” (i.e.,

by May 2, 2005). 

The court’s order also stated:

An expert witness not appearing on said lists will not

be permitted to testify unless the party offering the

witness demonstrates: (a) that the necessity of the

witness could not have been reasonably anticipated at

the time the lists were exchanged; (b) the Court and

opposing counsel were promptly notified upon discovery

of the witness; and (c) that the witness was promptly

proffered for deposition. 

June 2, 2004 Order at 5. 

On June 1, 2005, defendants served the disclosure of expert

Kim Blackseth (30 days before the July 1 deadline) to rebut reports

by plaintiff’s experts who opined that the store’s design was

legally insufficient. Plaintiff moves this Court to preclude the

testimony of Mr. Blackseth due to defendants’ allegedly untimely

designation of the witness. After this motion was filed,

defendants offered to set a mutually agreeable date for the parties

to depose this expert. Plaintiff rejected that offer.

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1 Why defendants think that the Status Order using the word

“all” is ambiguous is not disclosed by their papers.

2 Fed. R. Civ. P. 26(a)(2)(C) provides that, in the absence

of a contrary court order, a party may disclose the identity of an

expert whose testimony is intended only to contradict or rebut

evidence offered by another party’s expert thirty days after

disclosure of the other party’s expert.

3

II.

ANALYSIS

Plaintiff contends that defendants’ designation of Mr.

Blackseth was untimely because, pursuant to the Court’s order,

defendants could have reasonably anticipated the need for the

witness by May 2, 2005, when designation of all expert witnesses

by all parties was due. Defendants, on the other hand, contend

that in the absence of a concrete time line provided by the Court

for the designation of Mr. Blackseth1 was timely under the Federal

Rules of Civil Procedure.2 

 While defendants’ June 1, 2005 disclosure of Mr. Blackseth

complies with the Federal Rules, it is untimely by virtue of the

June 2004 Status Order. Defendants contend that Mr. Blackseth is

being offered only to rebut specific reports offered by plaintiff’s

experts regarding the legal sufficiency of the store’s design.

Although Mr. Blackseth’s report does rebut plaintiff’s evidence,

the position taken by defendants’ counsel that the need for Mr.

Blackseth was not reasonably knowable on May 2, 2005 is not

defensible. The store’s design has been disputed by both sides

since the commencement of litigation and defendants’ counsel could

have reasonably anticipated the necessity of such witness at the

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3 If defendants were truly in doubt, timely discovery would

have resolved the issue.

4

time the lists were exchanged. The proper course of action in this

case would have been for all parties to disclose their experts at

least 60 days before the close of discovery, as set forth in the

court’s June 2, 2004 order.3

Plaintiff’s motion to preclude the expert witness is GRANTED.

IT IS SO ORDERED. 

DATED: July 25, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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