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1 Because oral argument will not be of material

assistance, the court orders this matter submitted on the briefs.

E.D. Cal. Local Rule 78-230(h)

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

INDIAN HARVEST SPECIALTIFOODS,

INC., 

Plaintiff, NO. CIV. 04-CV-1055-FCD KJM

v.

WESTCHESTER FIRE INSURANCE MEMORANDUM AND ORDER

COMPANY,

Defendant.

____________________________/

----oo0oo----

Plaintiff, Indian Harvest Specialtifoods, Inc.,

(“plaintiff”), has filed suit against defendant Westchester Fire

Insurance Co. (“defendant”), based on defendant’s denial of

plaintiff’s insurance claim to recover for damage to equipment

caused by glass found in rice being processed at plaintiff’s

plant.1 Through the instant motion, plaintiff seeks to preclude

defendant’s expert witness, Dr. Thomas L. Read, Ph.D., P.E.,

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2 Unless otherwise stated, further references to a “Rule”

are to the Federal Rules of Civil Procedure.

2

(“Dr. Read”), from testifying based on the court’s Status (Pretrial Scheduling) Order (“Scheduling Order”), and Fed. R. Civ.

Proc. 37(c)(1).2 For the reasons stated herein, the court DENIES

plaintiff’s motion to preclude since the designation of Dr. Read,

while untimely and worthy of sanction, was harmless and thus does

not warrant exclusion.

BACKGROUND 

In September 2002, plaintiff, a rice processor and packager,

discovered large quantities of glass in wild rice it was

processing. (Comp’l at 2:6-8.) Plaintiff filed a claim with

defendant, their insurer, to recover the increased costs incurred

from the extra cleaning, storage and lost product. (Id. at 2:10-

16.) Defendant’s third party adjuster hired Dr. Read in late

2002 to assist with the investigation of plaintiff’s claim,

specifically to evaluate the type and potential source of the

glass particles. (Resp. To Opp’n at 3:1.) Plaintiff provided

Dr. Read with six samples of the glass found in the processing

plant for analysis. (Read Dec. at 2:6.) Dr. Read prepared an

initial report, based on the samples provided, that was not

conclusive as to the origin of the glass. (Read Dec., Ex. A.) 

Plaintiff was provided a copy of that report. (Kearney Dec. at

2: 2-3.)

On August 24, 2004, the court issued a Scheduling Order,

which set forth that all parties needed to disclose experts by

January 7, 2005, and complete discovery by March 14, 2005. 

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3

(Scheduling Order at 2:13.) The court issued an amended

Scheduling Order on February 23, 2005, which extended the close

of discovery to March 28, 2005. (Stipulation and Order Extending

Disc. Cut-off at 1:3.) 

Parties engaged in extensive communications beginning in

October 2004, in an effort to schedule inspections by Dr. Read of

plaintiff’s plant and of the glass samples in plaintiff’s

possession. On November 5, 2004, defendant filed its Second

Demand for Production which requested that plaintiff provide

responses to, among other things, the requested inspections of

the plant and glass. (Coplen Dec., Ex. N.) The demand noted

that the parties had scheduled the inspection of plaintiff’s

plant for December 14, 2004. (Id.) Plaintiff’s counsel

requested the date be moved to December 17, 2004. (Coplen Dec.,

Ex. Q.) Plaintiff then cancelled and offered thirteen alternate

dates, all of which fell after the deadline to designate expert

witnesses. (Res. to Opp’n at 4:26-5:1, citing Coplen Dec., Ex.

T.) The inspections of the plant and glass occurred in late

February and March 2005. Following the inspections and analysis,

Dr. Read prepared his final report. (Read Dec., Ex. B.)

Defendant filed its supplemental expert witness disclosure

for Dr. Read on April 26, 2005. (Supplemental Expert Disclosure

(“SED”) at 3:4.) Plaintiff subsequently filed the instant motion

to preclude Dr. Read’s testimony based on this court’s Scheduling

Order and Rule 37(c)(1).

ANALYSIS

1. Requirements of the Court’s Scheduling Order

The Scheduling Order, dated August 24, 2004, set January 7,

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3 It should have been clear to defendant by early 2005

that it would not satisfy the deadline to designate Dr. Read. As

such, the prudent thing for defendant to do would have been to

ask the court either to compel plaintiff to schedule the

inspections of the plant and glass production or to request an

extension of the expert designation deadline. Defendant did

neither. Defendant now must rely on the court’s discretion to

permit a late designation.

4

2005 as the deadline to designate expert witnesses. There is no

question that defendant’s designation of Dr. Read on April 26,

2005 violated this provision of the Scheduling Order.3 

The Court’s Scheduling Order provides in relevant part:

Failure of a party to comply with the disclosure schedule as

set forth above in all likelihood will preclude that party

from calling the expert witness at the time of trial. An

expert witness not appearing on the designation will not be

permitted to testify unless the party offering the witness

demonstrates: (a) that the necessity for the witness could

not have been reasonably anticipated at the time the list

was proffered; (b) that the court and opposing counsel were

promptly notified upon discovery of the witness; and (c)

that the witness was promptly made available for deposition.

Scheduling Order at 2:21-27. The Ninth Circuit noted, when

reviewing a district court order excluding a late-designated

witness for failure to comply with a scheduling order containing

identical compliance language, “[deadlines] must not be enforced

mindlessly ... Sometimes there may be good reason to permit an

identification of additional witnesses after the established

deadline. The pretrial order at issue here took that into

account and itself established the standard for seeking relief

from the order.” Wong v. Regents, 379 F.3d 1097, 1103, amended

on other grounds, 2005 U.S. App. LEXIS 10433 (9th Cir. June 7,

2005)(finding the court did not abuse its wide discretion in

determining that the pretrial order requirements were not met).

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5

Thus, Dr. Read’s testimony should be excluded unless defendant

demonstrates that Dr. Read’s necessity could not have been

reasonably anticipated, that defendant promptly notified the

court and opposing counsel upon discovery of Dr. Read’s necessity

as a witness, and that Dr. Read was promptly made available for

deposition. 

Defendant’s first hurdle is the highest. In light of the

fact that defendant retained Dr. Read as far back as December

2002, it is difficult to understand why defendant did not

anticipate the need for his testimony. However, the Scheduling

Order does not require defendant to show it was unaware of the

existence of a witness. Rather, it must demonstrate that it

could not reasonably anticipate the need to call him as a

witness. Here, Dr. Read could not form a full and informed

opinion regarding the origin of the glass prior to the

inspections of the plant and glass, which were delayed until late

February and March 2005. Dr. Read’s initial report, which was

made available to plaintiff, found only that five of the six

shards he analyzed were “soda lime” glass. (Read Dec., Ex. A.) 

It was not until after the plant and glass inspections that Dr.

Read was able to opine on the likely origin of the glass, that of

a bottle of alcohol. (SED; Read Dec., Ex. B.) Until the report

was prepared, defendant could not have known if Dr. Read’s

testimony would be of any value at all. Thus, prior to Dr.

Read’s formation of a full opinion regarding the origin of the

glass, defendant could not reasonably anticipate the need for Dr.

Read’s testimony.

Moreover, a party can designate an expert only when that

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4 The plant inspection finally occurred at the end of

February 2005. The glass inspection occurred on March 16, 2005. 

5 The court notes some tension between the provisions of

the court’s Scheduling Order, since presumably a party might

“reasonably anticipate the necessity of a witness” prior to the

witness being fully prepared to offer an informed opinion. 

6

expert is fully prepared to render an informed opinion. The

court’s Scheduling Order states, in relevant part:

All experts designated are to be fully prepared at the time

of designation to render an informed opinion, and give their

bases for their opinion, so that they will be able to give

full and complete testimony at any deposition taken by the

opposing party. Experts will not be permitted to testify at

the trial as to any information gathered or evaluated, or

opinion formed, after deposition taken subsequent to

designation. 

Scheduling Order at 3:10-14 (emphasis in original).

Until Dr. Read inspected the plant, analyzed the glass, and

prepared his report, he was not prepared to “render an informed

opinion ... so that [he] will be able to give full and complete

testimony at any deposition.” (Scheduling Order at 3:10-17.) 

The inspections did not occur until well after the expert

designation deadline had passed.4 Thus, Dr. Read could not

prepare his report or render an informed opinion prior to the

expert designation deadline. To designate him under such

circumstances would have violated the court’s Scheduling Order.5

Consequently, the court finds that, prior to Dr. Read’s

inspection of the plant and glass and preparation of his report,

defendant could not anticipate that Dr. Read was a necessary

expert witness. (SED at 1:22.)

Defendant also satisfies the remaining two requirements for

late designation, that defendant promptly notified the court and

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6 Defendant had offered Dr. Read for deposition by

plaintiff as early as November 4, 2004. (Comm. btwn Coplen &

Bland, Nov. 4, 2004 1:49 p.m.) Plaintiff did not take advantage

of this offer, nor has plaintiff deposed Dr. Read in the nearly

two months since Dr. Read’s designation on April 26, 2005. (Res.

to Opp’n at 8:23-24.) 

7

opposing counsel and that Dr. Read was promptly made available

for deposition. On April 26, 2005, after receiving Dr. Read’s

expert witness report, defendant designated him to the court and

to opposing counsel as an expert witness and complied with all

requirements for documentation related to an expert witness. 

(SED at 1:22.) Additionally, defendant immediately renewed its

previous offer to make Dr. Read available to opposing counsel for

deposition.6 (SED at 2:19-20.) 

Accordingly, the court finds that, although defendant should

have requested an extension of the deadline to designate expert

witnesses, the court’s Scheduling Order does not preclude

defendant from using Dr. Read as an expert witness. That said

however, the court finds defendant’s failure worthy of sanction. 

Accordingly, defendant will pay plaintiff the cost for a one-day

deposition of Dr. Read, at his specified rate of $285.00.

3. Failure to Disclose under Rule 37(c)(1)

Plaintiff secondarily contends that defendant’s late

designation of Dr. Read violated Rule 37(c)(1) and thus Dr.

Read’s testimony should be excluded. Rule 37(c)(1) in relevant 

portion states that:

A party that without substantial justification fails to

disclose information required by Rule 26(a) or 26(e)(1), or

to amend a prior response to discovery as required by Rule

26(e)(2), is not, unless such failure is harmless, permitted

to use as evidence at a trial, at a hearing, or on a motion

any witness or information not so disclosed. In addition to

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8

or in lieu of this sanction, the court, on motion and after

affording an opportunity to be heard, may impose other

appropriate sanctions.

Rule 37 (c)(1) (emphasis added). Subsection (c)(1) was added to

Rule 37 in 1993. The Advisory Committee notes for the amendment

describe it as a “self-executing,” “automatic” sanction to

“provide[]a strong inducement for disclosure of material.” Rule

37 advisory committee’s notes (1993). 

The Rule includes two exceptions to the “automatic” sanction

of exclusion. The witness may be permitted to testify if either

there is a substantial justification for failure to disclose or

if such failure is harmless. Rule 37(c)(1). The burden is on

the party facing sanctions to prove the failure was harmless. 

Yeti by Molly, Ltd., 259 F.3d 1101, 1107 (9th Cir. 2001). The

determination of whether to include or exclude discovery, such as

an expert, is within the wide discretion of this court. Yeti,

259 F.3d at 1106; Jenkins v. Whittaker, 785 F.2d 720, 728 (9th

Cir. 1986), cert. denied, 479 U.S. 918 (1986); Campbell Indus. v.

M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980). 

In deciding whether the failure to disclose an expert

witness was harmless, the court looks to four factors:

(1) the prejudice or surprise in fact of the party against

whom the excluded witnesses would have testified;(2) the

ability of that party to cure the prejudice; (3) the extent

to which waiver of the rule against calling unlisted

witnesses would disrupt the orderly and efficient trial of

the case or other cases in the court; (4) bad faith of

willfulness in failing to comply with the court's order.

Kim v. Pacific Bell, 1999 U.S. Dist. Lexis 15289, *7 (N.D. Cal.

Sept. 20, 1999) (citing Woodworker’s Supply, Inc. v. Principal

Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Cf. Price v.

Seydel, 961 F.2d 1470, 1474 (9th Cir. 1992) (adopting Seventh

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Circuit’s aforementioned factors for witnesses not included on

the pretrial list, from Spray-Rite Serv. Corp. v. Monsanto Co.,

684 F.2d 1226, 1245 (7th Cir. 1982)), aff’d on other grounds, 465

U.S. 752 (1984)).

As to the first factor, the court concludes that plaintiff

suffered no surprise by the late designation of Dr. Read. Unlike

a witness whose identity is undisclosed until after designation,

Dr. Read was well known to plaintiff for months prior to his

designation. Plaintiff initiated requests for Dr. Read’s files

as early as September 2004, and received a copy of Dr. Read’s

initial report in late December 2002. (Bland Dec., Ex. A.;

Kearney Dec. at 2:4.) Thus, Dr. Read’s late designation caused

no surprise. 

However, plaintiff claims that the late designation of Dr.

Read is prejudicial, since plaintiff neither deposed nor

conducted discovery necessary to refute his opinions. (Mot. to

Preclude at 9:8.) Plaintiff contends that inclusion of Dr.

Read’s testimony would require significant additional preparation

before the pending motion for summary judgement, currently

scheduled for hearing on July 22, 2005, and the upcoming November

trial. (Id. at 2:11-13.) While the court agrees that plaintiff

would suffer some prejudice if Dr. Read were permitted to

testify, any such prejudice is mitigated by the fact that

plaintiff has been aware of Dr. Read for months and defendant

repeatedly offered to allow plaintiff to depose Dr. Read

beginning in November 2004. As such this factor does not weigh

strongly against a finding of harmlessness. 

Moreover, the existence of prejudice, while significant,

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does not automatically require exclusion of the witness where the

prejudice can be cured. The court concludes that a cure here is

relatively easy. If plaintiff so requests, the court can afford

additional time to depose Dr. Read and conduct discovery to

refute Dr. Read’s testimony. If necessary, the pending motions

for summary judgement could be rescheduled. Any minor

modification of the discovery and dispositive motion deadlines

should not affect the trial date, which is five months away. 

Thus, the second factor weighs in favor of a finding of

harmlessness.

Next, the court examines the extent the addition of this

witness will disrupt the order and efficiency of this and other

court proceedings. As noted above, while inclusion of Dr. Read’s

testimony may necessitate extension of some deadlines in the

Scheduling Order, such extensions will not affect the trial date

and thus have only a minor effect on the court’s calendar and

proceedings. As such this factor does not weigh strongly against

a finding of harmlessness. 

Finally, it does not appear that defendant’s failure to

timely designate Dr. Read was willful or in bad faith. The court

can ascertain no attempt to gain a tactical advantage or to

surprise plaintiff, especially given Dr. Read was known and

discussed by the parties since prior to commencement of this

action. Accordingly, this factor weighs in favor of a finding of

harmlessness.

In light of the factors discussed above, the court finds

that the failure to disclose Dr. Read by January 7,2005, as

provided under Rule 37(c)(1), was harmless.

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7 If plaintiff so requests, the court will grant a

reasonable extension of discovery, including submission of

rebuttal witnesses, and a postponement of the pending motions for

summary judgement before the court. 

11

CONCLUSION

For the foregoing reasons the court DENIES plaintiff’s

motion to preclude Dr. Read’s testimony.7 However, the court

SANCTIONS defendant for failure to fully comply with the

Scheduling Order. Defendant shall pay plaintiff the cost of

plaintiff’s deposition of Dr. Read, not to exceed seven hours at

his specified rate of $285.00.

IT IS SO ORDERED.

DATED: June 29, 2005

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

 UNITED STATES DISTRICT JUDGE

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