foregone conclusion. Thus, to admit the Mandell text would cause undue disruption
in this case.

In addition we have every indication that the arguments included in this motion
to amend lack sincerity and that the motion is brought in bad faith. Instead of worrying
about discovery sanctions under Rule 37(c), Stainer’s counsel would do well to
concern themselves with Federal Rule of Civil Procedure 11(c) which provides for
sanctions when a motion such as this is filed. Stainer’s original 26(a)(2) statement did
not indicate that Bakken relied on any literature in forming his opinions. Cracker
Bartel sent a letter to Stainer’s counsel on July 16, 2002 noting that the 26(a)(2)
statement indicated that Bakken relied solely on his own education and experience. In
the letter Cracker Barrel specifically requested that Stainer provide any other basis for
Dr, Bakken’s conclusions and opinions. Stainer’s counsel then sent a letter to Cracker
Barrel’s counsel indicating that Bakken would not be relying on any specific literature
and filed a supplemental 26(a)(2) statement which again failed to disclose the Mandell
text as a basis for Bakken’s opinions. Also, before Bakken’s deposition Stainer’s
counsel was informed in writing that Bakken would be required to produce any
publications relied upon in forming his opinions. Thus, despite having ample
opportunity to correct the supposed mistaken omission, Stainer failed to include the

Mandell text as a basis for Bakken’s opinions. Most troubling of all is that the motion

4.



and experience. Cracker Barrel is correct to point out that Stainer is attempting to
contradict his prior Rule 26(a)(2) statement rather than attempting to supplement it.
Even were we to view our prior ruling as a discovery sanction, barring the
introduction of the Mandell text, the ultimate result is the same for the purposes of the
motion to amend, A party is not permitted to use evidence at trial that was not properly
disclosed according to Rule 26(a) unless the omission was justified or harmless. Fed.
R. Civ. P. 37(c)(1). In deciding whether to bar evidence due to a transgression of
Rule 26(a) the court should consider: 1)the prejudice or surprise to the opposing party
ifthe evidence is admitted, 2) the disruption if the evidence is admitted, and 3) whether
there is an indication of bad faith in not producing the evidence sooner. Bronk v.
Ineichen, 54 F.3d 425, 432 (7th Cir. 1995). An admission of the Mandell text would
bea surprise to Cracker Barrel in light of Stainer’s repeated assurances that Bakken did
not rely on any literature in forming his opinions, Also, were we to admit the Mandel
text, because Bakken never indicated in his deposition that he relied on the text, we
would need to reopen discovery to allow further depositions. After concluding the
renewed discovery, the parties will then likely need to reargue the motion to strike

Bakken’s testimony and we will need to determine if the Mandell text is sufficient to

warrant the admittance of Bakken as an expert witness, which is by no means a



to amend and the accompanying affidavit present a version of events that contradicts
Bakken’s prior deposition testimony. There is no reason to believe that Bakken simply
forgot about the Mandell text during his deposition. Bakken discussed the Mandell
text during his deposition and indicated that he regularly consulted it in his practice as
an infectious disease specialist (Bakken dep. pp. 27-28). Notably absent from the
deposition testimony, however, is any indication that he relied on the Mandell text in
forming his conclusions and opinions for this case, When asked: “You have not
reviewed any literature in connection with forming your opinions in this case?,”
Bakken replied: “No.” When asked: “You didn’t do any search of medical —
MEDLINE search or other search through medical texts to help you in formulating
your opinions?”, Bakken answered: “No.” Bakken was again asked at the end of his
deposition if there was any other basis not mentioned that he used to formulate his
opinions in this case, and he replied: “No.”

Inexplicably Stainer now seeks to amend his 26(a)(2) statement and presents an
affidavit signed by Bakken indicating that Bakken relied on the Mandell text in
forming his opinions for this case. Stainer offers no explanation in his motion for
Bakken’s sudden change of heart or for Stainer’s failure to correct the supposed
mistaken omission prior to the filing of the motion to strike. This motion to amend

illustrates the worst aspects of allowing in expert testimony at trial. We truly wonder

-5-



Minute Order Tarm (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Jud; COTAS Sitting Judge if Oth
OF Magistrate Sade Charles P. Kocoras tian Assigned Judge
CASE NUMBER 01 C 6848 DATE 3/12/2003
CASE Stainer vs, Cracker Barrel Old Country Store
TITLE

[in the following box (a) indicate the party filing the motion, c.g., plaintitt, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(a5) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) a Answer brief to motion due___.. Reply to answer briefdue___

(4) o Ruling/Hearing onset fort.

(5) a Status hearing set for 4/1/2003 at 9:30 A.M.,

(6) oOo Pretrial conference[held/continued to] [set for/re-set for]on__—sset for____at
7) a Trial[set for/re-set for}on at

(8) ao [Bench/Jury trial] [Hearing] held/continued to_____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OC Local Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2).

qo) =f [Other docket entry] ENTER MEMORANDUM OPINION: We deny the motion (Doc 14-1) to
supplement the Rule 26(a)(2) statement.

dl) of (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

v | Docketing to mail notices,

Mail AO 450 form.

Copy to indge(magisorate judge.

Y oo eat
rt e\Ld Z) SW kU

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initials

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central Clerk's Office mating deputy initials



what assistance experts can be to a lay person jury if experts such as this can be found
that will tailor and alter their supposed genuine opinions to meet the precise needs of
those who pay them. Stainer apparently sees nothing wrong with presenting this court
with a version of events that is contrary to those presented by Stainer and Bakken on
prior occasions. He asks us to accept his current version of events and leaves us to
speculate as to whether the prior version of events was a result of perjury and deception
ot mere incompetence. We granted the motion to strike Bakken’s testimony. Stainer
cannot now alter his version of events using hindsight to obtain a second review of the
admissibility of Bakken’s testimony and it would be unfair to prejudice Cracker Barrel
in such a manner.
CONCLUSION
Based on the foregoing analysis, we deny the motion to supplement the

Rule26(a)(2) statement,

Charles P. Kocoras
Chief Judge
United States District Court

MAR 12 20
Dated: # 2003



UNITED STATES DISTRICT COURT .
NORTHERN DISTRICT OF ILLINOIS OCKETED
EASTERN DIVISION , ony:

MAR 4.3 2003

JOSEPH E. STAINER,
Plaintiff,
01 C 6848

vs.

CRACKER BARREL OLD COUNTRY STORE,
INC.,

wwe SS SS SE SL

Defendant.

MEMORANDUM OPINION
CHARLES P, KOCORAS, Chief District Judge:

This matter is before the court on Plaintiff Joseph E. Stainer’s (“Stainer”) motion
to supplement his Rule 26(a)(2) disclosures. On December 4, 2002 we granted
Defendant Cracker Barrel Old Country Store, Inc.’s (“Cracker Barrel”) motion to strike
Dr, David Bakken (“Bakken”) as an expert witness for Stainer. One of the bases for
our ruling was the fact that Stainer’s Rule 26(a)(2) disclosures indicate that Bakken
relied solely on his own education, knowledge, and experience in forming his opinions

for this case. Stainer now seeks leave to amend his Rule 26(a)(2) statement to allege

that Bakken relied on a textbook entitled Mandell, Douglas & Bennet Principles and

Practice of Infectious Disease (“Mandell text”). If this motion is granted, presumably



Stainer’s next step would be to try and have Bakken readmitted as an expert witness,
but for the reasons stated below we deny the motion.
DISCUSSION

Stainer cites Spearman Indus., Inc. v. St. Paul Fire and Marine Ins. Co., 138
F. Supp. 2d 1088 (N.D. Ill. 2001), in support of his argument that he should be given
leave to amend his Rule 26(a)(2) statement. In Spearman Indus. Inc., the court
considered whether to sanction the plaintiff and bar an expert witness because the
witness was not disclosed in the plaintiff's Rule 26(a)(2) statement. /d. at 1094.
However, in our prior ruling we did not bar the admission of the Mandell text as part
of any discovery sanction because it was not disclosed in accordance with Rule
26(a)(2). This is not an instance where the Mandell text was mistakenly omitted from
the Rule 26(a)(2) statement. The Rule 26(a)(2) statement, the supplemental statement,
and Bakken’s deposition testimony affirmatively indicated that he did not rely on any
literature in forming his opinions. Stainer attempted to introduce the Mandell text
along with his answer to the motion to strike. We simply took Stainer at his own word
and chose the version of events presented by him that was best supported and thus

excluded the Mandell text which was inconsistent with Stainer’s other claims that

Bakken did not rely on any literature and relied solely on his knowledge, education,