UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

OLIVER JACKSON, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:13-CV-429-PRC

)

INTERNATIONAL PAPER COMPANY, )

 Defendant. ) 

_________________________________________ )

)

INTERNATIONAL PAPER COMPANY, )

Third Party Plaintiff, )

)

v. )

)

TRANSCORR, LLC, )

Third Party Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant/Third-Party Plaintiff International Paper

Company’s Motion to Strike and Exclude Plaintiff’s Improper Expert Disclosure of Dr. R. Matthew

Brach, Ph.D., P.E. [DE 34], filed on July 9, 2015, and on Plaintiff’s Motion for Enlargement of Time

to File Rebuttal Expert Report [DE 35], filed on July 10, 2015. Both motions are ripe for ruling.

On October 10, 2013, Plaintiff filed a Complaint in the Lake County, Indiana, Superior

Court, alleging negligence against Defendant International Paper Company. Defendant removed this

action to the United States District Court, Northern District of Indiana, Hammond Division, on

November 22, 2013, and filed its Answer on December 9, 2013. Defendant filed a Third Party

Complaint against Transcorr, LLC on May 27, 2014. Transcorr, LLC filed an Answer on July 25,

2014. On September 18, 2015, the Court issued a scheduling order, setting the deadline for

Plaintiff’s expert witness disclosures and reports for March 30, 2015, the deadline for Defendant’s

expert witness disclosure and reports for April 29, 2015, and the deadline for Rule
26(e) supplements for May 29, 2015. The discovery and expert discovery deadlines were set for June

29, 2015.

On April 16, 2015, pursuant to an extension agreed upon by the parties, Plaintiff disclosed

several Rule 26(a)(2) witnesses, along with an explanation of the subject matter on which each

witness was expected to present evidence and a summary of the facts and opinions on which each

witness was expected to testify, in accordance with Rule 26(a)(2)(C). None of Plaintiff’s disclosed

experts was retained or specifically employed to provide expert testimony under Rule 26(a)(2)(B).

On May 15, 2015, Defendant disclosed the identity and report of its retained expert witness,

Michael A. Sutton.

On May 29, 2015, Plaintiff made supplemental disclosures under Rule 26(e), and disclosed

Dr. R. Matthew Brach, Ph.D., P.E pursuant to Rule 26(a)(2)(C). The document provided that “[n]one

of the identified anticipated expert and/or skilled witnesses anticipated have been currently retained

or specifically employed to provide expert testimony.” Nevertheless, Plaintiff disclosed that Dr.

Brach “is expected to present evidence rebutting the findings and/or opinions contained within the

report of Defense Expert Michael A. Sutton. We expect him to testify regarding the deficiencies and

assumptions contained within the report of Michael A. Sutton.” Plaintiff disclosed Dr. Brach’s

curriculum vitae and “Professional Profile,” which reveal that Dr. Brach is a Senior Managing

Consultant with Engineering Systems, Inc. and an expert professional engineer who specializes in

vehicle impact analysis, vehicle dynamics, and automotive accident reconstruction.

ANALYSIS

Federal Rule of Civil Procedure 26(a)(2)(B) provides:

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

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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:

(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).

Federal Rule of Civil Procedure 26(a)(2)(D) provides that, absent a stipulation or a court

order, an expert disclosure “intended solely to contradict or rebut evidence on the same subject

matter identified by another party under Rule 26(a)(2)(B) or (C), [must be made] within 30 days

after the other party’s disclosure.” Fed. R. Civ. P. 26(a)(2)(D)(ii).

Federal Rule of Civil Procedure 37(c)(1) provides, in relevant part: “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.” Fed. R. Civ. P. 37(c)(1). The consequence for

failing to comply with Rule 26(a)(2)(B) is “exclusion of an expert’s testimony . . . ‘unless the failure

was substantially justified or is harmless.’” Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734

(7th Cir. 2010) (citing Gicla v. United States, 572 F.3d 407, 410 (7th Cir. 2009) (quoting Fed. R.

Civ. P. 37(c)(1))). Courts consider several factors when deciding whether non-compliance with Rule

26(a) is harmless: (1) the prejudice or surprise to the party against whom the evidence is offered;

(2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4)

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the bad faith or willfulness involved in not disclosing the evidence at an earlier date. Tribble v.

Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (quoting David v. Caterpillar, Inc., 324 F.3d 851,

857 (7th Cir. 2003)).

In the instant motion, Defendant seeks an order excluding the expert testimony of Dr. Brach

because Plaintiff did not serve an expert report as required by Rule 26(a)(2)(B). Plaintiff did not

disclose any Rule 26(a)(2)(B) expert in his original expert disclosures. The disclosure of Dr. Brach

by the May 29, 2015 deadline for Rule 26(e) supplements was not as a Rule 26(a)(2)(B) retained

expert but rather as witness under Rule 26(a)(2)(C), for which no report is required. Nevertheless,

Plaintiff’s disclosure identified Dr. Brach’s expected testimony as exclusively related to his findings

as an expert in his field. Thus, he was disclosed for the express purpose of giving expert rebuttal

testimony. Because Plaintiff’s supplemental expert witness disclosure did not include a written

report or the information required under Rule 26(a)(2)(B)(i)-(iv), the disclosure is improper and

exclusion of Dr. Brach’s testimony is the proper remedy.

In his response brief, Plaintiff notes that Dr. Brach’s disclosure was made within 30 days of

Defendant’s disclosure of its expert Michael A. Sutton. Yet, he admits that no expert report was

provided with Dr. Brach’s disclosure and that Dr. Brach has not yet authored a report. Instead, he

asserts, without explanation, that Dr. Brach’s rebuttal expert report cannot be drafted until the

discovery deposition of Sutton. Thus, Plaintiff contends that his failure to attach a report to the

disclosure of Dr. Brach was justified and harmless. 

The Court disagrees. Dr. Brach was not disclosed on May 29, 2015, as a retained expert

under Rule 26(a)(2)(B); he was disclosed as a Rule 26(a)(2)(C) expert. That characterization was

a misrepresentation of the intended use of Dr. Brach’s expert testimony. It is apparent from Dr.

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Brach’s curriculum vitae and Professional Profile that Dr. Brach is a retained witness. Plaintiff

admits as much in his response brief. If Plaintiff retained Dr. Brach to offer expert opinions in this

matter, he should have been disclosed so by the April 16, 2015 deadline. Plaintiff may not now use

Rule 26(e), or even Rule 26(a)(2)(D)(ii) to untimely disclose an expert to offer liability opinions. 

To the extent that Dr. Brach is being offered solely as a rebuttal expert, Plaintiff has not offered any

explanation why Dr. Brach could not offer a rebuttal opinion based on Sutton’s expert report, which

offered ten delineated opinions. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th

Cir. 2010) (explaining that the purpose of an expert report is to “‘convey the substance of the

expert’s opinion . . . so that the opponent will be ready to rebut, to cross-examine, and to offer a

competing expert if necessary’” (quoting Walsh v. Chez, 583 F.3d 990, 994 (7th Cir. 2009)). Nor

did Plaintiff seek an extension of time to disclose Dr. Brach’s expert rebuttal report before the

expiration of the thirty-day deadline following Defendant’s disclosure of Sutton. Defendant timely

disclosed its expert and expert report as required under the rules. The discovery and dispositive

motion deadlines, although extended, are rapidly approaching. Plaintiff’s improper expert disclosure

is neither justified nor harmless.

CONCLUSION

Accordingly, the Court hereby GRANTS Defendant/Third-Party Plaintiff International Paper

Company’s Motion to Strike and Exclude Plaintiff’s Improper Expert Disclosure of Dr. R. Matthew

Brach, Ph.D., P.E. [DE 34] and DENIES Plaintiff’s Motion for Enlargement of Time to File

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Rebuttal Expert Report [DE 35]. The Court STRIKES Plaintiff’s disclosure of Dr. R. Matthew

Brach as an expert witness and EXCLUDES all testimony and opinions of Dr. Brach.

SO ORDERED this 20th day of August, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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