IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

THOMAS E. LEFFEL, : Case No. 3:17-cv-79 

 : 

Plaintiff, : Judge Thomas M. Rose 

 : 

v. : 

 : 

VILLAGE OF CASSTOWN, : 

 : 

 Defendant. : 

______________________________________________________________________________ 

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART 

MOTION TO STRIKE PLAINTIFF’S EXPERT DISCLOSURE AND REPORTS 

OR, ALTERNATIVELY, MOTION IN LIMINE TO PRECLUDE TESTIMONY 

OF PLAINTIFF’S EXPERT WITNESSES (DOC. 21) 

______________________________________________________________________________ 

This case is before the Court on the Motion to Strike Plaintiff’s Expert Disclosure 

and Reports or, alternatively, Motion in Limine to Preclude Testimony or Plaintiff’s 

Expert Witnesses (hereinafter, the “Motion to Strike”) (Doc. 21) filed by Defendant 

Village of Casstown (“Defendant”). Defendant moved to strike the disclosures and 

reports or preclude the testimony of three experts designated by Plaintiff Thomas E. 

Leffel (“Plaintiff”): Michael Cozatt, Carlo McGinnis, and Carol Collins. In response to 

the Motion to Strike, Plaintiff supplemented its disclosures regarding Cozatt and 

McGinnis and withdrew his designation of Collins. (Doc. 22.) In reply, Defendant 

withdrew its Motion to Strike as to Cozatt. (Doc. 24 at 1, n.1.) The only remaining issue 

is therefore whether the Court should strike McGinnis’ report and/or exclude his 

testimony. 
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I. BACKGROUND 

In its Preliminary Pretrial Conference Order, the Court set deadlines of 

September 15, 2017 and November 30, 2017, respectively, for Plaintiff’s disclosure of 

primary and rebuttal expert witnesses “and to provide a copy of the expert’s report.” 

(Doc. 8.) On or about September 15, 2017, Plaintiff identified his primary expert 

witnesses as Cozatt and McGinnis and provided copies of their respective reports. 

(Docs. 21-1, 21-2, 21-3.) 

Defendant argues that Plaintiff failed to provide a “detailed and complete” 

report for McGinnis, as well as his qualifications, information about his prior testimony, 

a statement regarding his compensation arrangement, and the facts, data and exhibits 

that he will use or that support his opinions. (Doc. 21 at 4, quoting U.S. ex rel. Tennessee 

Valley Auth. v. 1.72 Acres of Land In Tennessee, 821 F.3d 742, 751 (6th Cir. 2016) and citing 

Fed. R. Civ. P. 26(a)(2)(B).) Defendant further argues that, after service of the Motion to 

Strike, Plaintiff provided additional opinions for Mr. McGinnis in a “supplemental” 

expert report that are not permitted under Federal Rule of Civil Procedure 26(e). 

II. ANALYSIS 

Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity 

of any expert witness it may use at trial. Rule 26(a)(2)(B) mandates that certain expert 

disclosures must be accompanied by a written report: 

Unless otherwise stipulated or ordered by the court, this disclosure must 

be accompanied by a written report—prepared and signed by the 

witness—if the witness is one retained or specially employed to provide 

expert testimony in the case or one whose duties as the party's employee 

regularly involve giving expert testimony. The report must contain: 
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(i) a complete statement of all opinions the witness will express and 

the basis and reasons for them; 

(ii) the facts or data considered by the witness in forming them; 

(iii) any 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. 

Fed. R. Civ. P. 26(a)(2)(B). Under Federal Rule of Civil Procedure 26(e)(2), a 

party has a duty to supplement an expert report, which “extends both to information 

included in the report and to information given during the expert’s deposition.” Fed. R. 

Civ. P. 26(e)(2). Any additions or changes “must be disclosed by the time the party’s 

pretrial disclosures under Rule 26(a)(3) are due.” Id.

If a party fails to make the above disclosures, there can be consequences. Federal 

Rule of Civil Procedure 37(c)(1) states: 

If a party fails to provide information or identify a witness as required by 

Rule 26(a) or (e), the party is not allowed to use that information or 

witness to supply evidence on a motion, at a hearing, or at a trial, unless 

the failure was substantially justified or is harmless. In addition to or 

instead of this sanction, the court, on motion and after giving an 

opportunity to be heard: 

(A) may order payment of the reasonable expenses, including 

attorney's fees, caused by the failure; 

(B) may inform the jury of the party's failure; and 
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(C) may impose other appropriate sanctions, including any of the 

orders listed in Rule 37(b)(2)(A)(i)-(vi). 

Fed. R. Civ. P. 37(c)(1). The party potentially subject to sanctions has the burden to 

prove harmlessness. Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th 

Cir. 2003). 

Plaintiff does not make a serious attempt to defend the sufficiency of his original 

disclosures for McGinnis—nor should he. Plaintiff describes McGinnis’ report as “in 

process” and “admittedly succinct.” (Doc. 5.) The entire report comprised the 

following three sentences: 

My review of this matter to date reveals the existence of several issues 

concerning the boundaries of the subject parcel including, but not limited 

to, their relationship to the right-of-way of Main Street on the west and the 

right-of-way of the alley on the east. The presence of these unanswered 

questions provide for the reasonable probability of litigation. 

Accordingly, it is my opinion that the title to said parcel is unmarketable, 

given the unsettled status of the record. 

(Doc. 21-3.) The report refers to “several issues” but identifies only two—the parcel’s 

relationships with (1) “the right-of-way of Main Street on the west,” and (2) “the rightof-way of the alley on the east.” (Doc. 21-3.) The report fails to explain why these two 

relationships constitute “issues.” It may be inferred that the relationships give rise to 

“unanswered questions” based on the conclusion that “these unanswered questions 

provide the reasonable probability of litigation.” (Id.) Like the issues, the unanswered 

questions are never explained, but McGinnis concludes that the parcel is therefore 

unmarketable. Thus, the report falls far short of meeting the requirements of Rule 

26(a)(2)(B)(i) and (ii), which require “a complete statement of all opinions,” the “basis 
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and reasons” for those opinions, and “the facts or data considered by the witness in 

forming them.” 

Notwithstanding the glaring deficiency of McGinnis’ report, Plaintiff argues that 

his failure to comply with Rule 26(a)(2)(B) was harmless. Plaintiff provides a variety of 

reasons why his failure should be excused—including that Defendant made no attempt 

to meet and confer about Plaintiff’s expert disclosures before bringing the Motion to 

Strike. Indeed, if Defendant had let Plaintiff know that it was not satisfied with his 

expert disclosures, a lot of briefing might have been avoided. On the other hand, it is 

Plaintiff’s responsibility to meet the Court’s deadlines for expert disclosures. He is not 

entitled to shirk those deadlines in reliance on the meet-and-confer process to work out 

the deficiencies in his disclosures. In any event, the Court now considers whether 

Plaintiff has carried his burden of showing his non-compliance with Rule 26(a)(2)(B) 

was harmless. 

Plaintiff first argues that he timely produced all of the documents that McGinnis 

relied upon, but was unaware that there were “some errors” in the production. Plaintiff 

only became aware of those errors after Defendant brought them to his attention in the 

Motion to Strike. This is the kind of inadvertent error that the Sixth Circuit has excused 

under similar circumstances. See Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 

776, 783 (6th Cir. 2003) (“The fact that [plaintiff] knew of the lack of disclosures and 

[defendant] apparently did not may suggest that these violations should be considered 

substantially justified or harmless.”) Plaintiff further argues that McGinnis relied on 
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sources mostly in the public record, such as Ohio statutes and surveys that were readily 

available to both parties. 

Plaintiff further notes that Defendant did not request McGinnis’s deposition 

before bringing the Motion to Strike or indicate that it needed additional information in 

order to avoid taking McGinnis’s deposition. (Doc. 4.) The Sixth Circuit has held that 

an expert report “must be complete such that opposing counsel is not forced to depose 

an expert in order to avoid an ambush at trial; and moreover the report must be 

sufficiently complete so as to shorten or decrease the need for expert depositions and 

thus to conserve resources.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 

(6th Cir. 2010)(citation omitted). Although Defendant did not request McGinnis’s 

deposition before moving to strike his report, it would not have any choice but to do so 

if the report’s deficiencies were not corrected. That Defendant had yet to seek 

McGinnis’ deposition does not cut in Plaintiff’s favor here. 

In the end, Plaintiff’s non-compliance is saved by the extended trial calendar in 

this case. At the parties’ joint request, the Court recently extended the discovery cutoff 

and dispositive motion deadline in this case until, respectively, May 28 and June 30, 

2018. This extension resulted in a 90-day continuance of all remaining dates in the 

Court’s Preliminary Pretrial Conference Order, which moved the Final Pretrial 

Conference to December 13, 2018 and the first day of trial to January 14, 2019. In light 

of the continuance of the trial schedule, which provides ample time for the parties to 

work out remaining issues concerning McGinnis’ report, Plaintiff’s deficient disclosures 

are harmless. 
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Plaintiff’s delay in producing McGinnis’ report denied Defendant the 

opportunity to designate a rebuttal expert. In addition, even in his second report, 

McGinnis fails to identify the records that he relied upon with specificity. The Court’s 

Order below addresses these issues. See Roberts, 325 F.3d at 784 (Rule 37(c)(1)’s 

“provision on sanctions explicitly states in pertinent part that ‘in lieu of this sanction [of 

total exclusion], the court, on motion and after affording an opportunity to be heard, 

may impose other appropriate sanctions.’”) 

III. CONCLUSION 

For the reasons above, the Court GRANTS IN PART and DENIES IN PART 

Defendant’s Motion to Strike. Specifically, the Court DENIES the Motion to Strike as to 

Cozatt as moot. The Court GRANTS the Motion to Strike as to Collins, who will not be 

permitted to provide expert testimony in this case. The Court DENIES the Motion to 

Strike as to McGinnis, insofar as the Court will not strike his expert report or preclude 

him from providing expert testimony.1 However, as to McGinnis, the Court hereby 

ORDERS as follows: 

1. Within 7 days from entry of this Order, Plaintiff must produce to 

Defendant, or identify with specificity (e.g., Bates number, if used) in 

Plaintiff’s existing production, all of “the Miami County Auditor, 

Recorder, Engineer, and various other County records; various related 

maps and GIS data, applicable legal treatises, and related case law and 

statutes; [. . .] Mr. Cozatt’s survey reviews, findings, and opinions, 

including [. . .] those opinions expressed during our conference on 

November 20, 2017 after review of Brumaugh Engineering & 

Surveying, LLC Report, dated October 17, 2017; and [. . .] various 

record drawings dated October 2011 for Main Street, Troy Pike and 

 

1 The Court renders no opinion regarding McGinnis’ qualifications to testify as an expert under Federal 

Rule of Evidence 702. That issue was not raised by Defendant’s Motion to Strike, and the Court has not 

considered Plaintiff’s argument in this regard. 
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Addison Pike (S.R. 55) reconstruction project,” which are referenced in 

McGinnis’ second report (Doc. 22-8). McGinnis will not be permitted 

to rely on any evidence, facts or data that is not so identified or 

produced pursuant to this Order. 

2. Defendant may, if it wishes, designate a rebuttal expert as to 

McGinnis’ opinions and produce an expert report for such rebuttal 

expert within 30 days of this Order. 

DONE and ORDERED in Dayton, Ohio, this Friday, April 20, 2018. 

 s/Thomas M. Rose 

 ________________________________ 

 THOMAS M. ROSE 

 UNITED STATES DISTRICT JUDGE