1 The original scheduling order issued by the Court set the date for “expert

disclosures” at July 1, 2010. Docket No. 15. The parties agreed later on to extend that

date to July 30, 2010. Docket No. 40, at 2. On July 30, American Erectors submitted

the name of its expert to Art Iron. Id.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AMERICAN ERECTORS, INC.,

Plaintiff,

v.

OHIO FARMERS INSURANCE CO., an

Ohio corporation and ART IRON, INC.,

an Ohio corporation,

Defendants.

 /

Case No. 09-cv-13424

HONORABLE STEPHEN J. MURPHY, III

ORDER DENYING ART IRON’S MOTION TO 

EXCLUDE TESTIMONY OF AMERICAN 

ERECTORS’ EXPERT WITNESS (docket no. 40)

On August 13, 2010, defendant Art Iron, Inc. moved to exclude expert witness

testimony proposed by American Erectors, Inc. under Fed. R. Civ. P. 37(c)(1), because

American Erectors disclosed the name only of the party offering expert testimony on the

date to which they previously stipulated.1

 American Erectors, Inc. claims there was a

misunderstanding as to what disclosures the Court’s scheduling order required of them at

what times, and asks that the Court deny the motion to exclude. The Court agrees that

American Erectors’ innocent mistake does not warrant the severe remedy of exclusion of

testimony. Therefore, it will deny Art Iron’s motion.

The Federal Rules requires parties to a civil action to make detailed disclosures about

proposed expert testimony “at the times and in the sequence the Court orders.” Fed. R.
2 Art Iron's proposed delay between disclosure of names and reports was actually

longer than the one proposed by American Erectors. Docket No. 14, at 2–3.

Civ. P. 26(a)(2)(C). Failure by a party to make these disclosures means that “the party is

not allowed to use that information or witness to supply evidence . . . unless the failure was

substantially justified or is harmless.” Id. 37(c)(1). This exception is meant to “avoid unduly

harsh penalties” in cases where the failure to provide needed disclosure is a result of an

innocent mistake, rather than an effort by one party to sandbag the other. See Fed. R. Civ.

P. 37(c)(1) advisory committee’s note (1993); A district court’s decision to exclude expert

testimony under this provision is reviewed for an abuse of discretion. King v. Ford Motor

Co., 209 F.3d 886, 900 (6th Cir. 2000).

American Erectors’ has shown to the Court’s satisfaction that there was a legitimate

basis for the confusion as the scheduling order’s requirements. In their stipulated Rule

26(f) conference report, both Art Iron and American Erectors proposed an expert disclosure

schedule where the names of the experts were to be disclosed first, followed by the

disclosure of reports sometime afterwards. Docket No. 14, at 2-3.2

 But the order issued

by the Court only mentions “Rule 26(a)(2) expert witness disclosures,” without the

distinction between names and substantive disclosures. Docket No. 15, at 1. Counsel for

American Erectors was under what turned out to be a false impression that the Court’s

order had incorporated this staged disclosure schedule. Thus, on July 30, counsel

submitted the name of her proposed expert witness to counsel for Art Iron, rather than the

entire report.

The Court agrees with American Erectors that this error was “substantially justified or

harmless.” The Court's scheduling order is ambiguous when considered in light of the

mutual agreement between the parties prior to the scheduling conference that disclosure
of information on expert witnesses should be staged. American Erectors' error, in light of

this confusion, was understandable. Moreover, any error from the omission appears not

to have been of much consequence. American Erectors quickly took remedial measures

once it realized the error by segregating the expert report Art Iron submitted without

opening it, and proposing to submit its own report on an expedited schedule. Docket No.

42, ¶ 6. Finally, even if neither of these factors were sufficient, the Court agrees with

American Erectors that the “sanction” of requiring them to produce the required report on

a tight deadline of 21 days would be “appropriate” to remedy what appears to be no more

than a misunderstanding. Fed. R. Civ. P. 37(c)(1)(C).

WHEREFORE, it is hereby ORDERED that Art Iron's motion to exclude expert

testimony (docket no. 40) is DENIED.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 4, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 4, 2010, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager