Commercial Litigation and Arbitration

Serving Expert Report Months Late Harmless Where Sufficient Time Remains in Discovery Schedule for Deposition

Edwards v. Nike Retail Servs., Inc., 2012 U.S. Dist. LEXIS 157822 (E.D. Cal. Nov. 2, 2012):

[D]efendants' late disclosure of the medical expert reports on October 11, 2012, although potentially inconvenient in some sense, was ultimately harmless, because it left sufficient time for plaintiff to conduct the deposition of defendant's medical expert, Dr. Leith, prior to the expert discovery completion deadline of November 16, 2012. Plaintiff alleges harm because defendants' medical expert reports were purportedly in defendants' possession prior to the mediation, emphasizing that plaintiff did not have access to these reports until after the mediation. However, plaintiff can hardly be heard to complain about her lack of access to the reports at the mediation when she herself has not even provided any expert reports to defendants to date. In any event, even if the late disclosure of defendants' medical expert reports somehow interfered with a potential settlement at mediation, it has no harmful effect on the ultimate trial of this matter.

Accordingly, the exclusionary sanction of Rule 37(c)(1) is not appropriate as to defendants' disclosure of medical expert Dr. Leith, because the late disclosure was harmless. However, this finding presumes that defendants will make Dr. Leith readily available for a deposition by plaintiff's counsel prior to November 16, 2012.

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