Wilkins v. Montgomery, 2014 U.S. App. LEXIS 8412 (4th Cir. May 5, 2014):

We first discuss Appellant's challenge to the district court's exclusion of her expert, Dr. Voskanian. This issue implicates both the February 8 Order excluding Dr. Voskanian, and the portion of the April 11 Order denying Appellant's Rule 59 motion to alter or amend the February 8 Order.

At the February 7 motions hearing, the district court ruled as follows:

   The expert will be excluded. You just can't -- if we were to allow him to testify it would just turn everything that is in the pretrial order on its head. Let me just say that I think the question of deliberate indifference, if that is the standard used in this case, is one you can argue to the jury based on  [*11] what the administrators knew and when they knew it. I don't think you need an expert on that.

J.A. 558. At the April 10 hearing, regarding the Rule 59 motion, the district court stated,

   Th[e] motion [to alter or amend the February 8 Order] will be denied . . . , for two reasons. First, the plaintiff was just way late in naming an expert in this case. And I know how hard it is to find experts for cases like this. But we have those deadlines so we can move in an orderly fashion. And the lateness with which the expert was identified would not allow that to happen. Second, the expert witness' report is pretty much a brief of legal conclusions in the case, and I don't think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case.

Id. at 661.

The Pre-Trial Order in this case stated, "The parties will disclose the information required under Rule 26(a)(2) on the following schedule: Party with the burden of proof on an issue by October 22, 2012," which was later moved to November 21, 2012, by consent of the parties. Wilkins v. Cent. State Hosp., No. 3:12-cv-00152 (E.D. Va. filed Aug. 21, 2012), ECF No. 26 at 2 (pre-trial order); see  [*12] also id. ECF No. 30 (filed Oct. 25, 2012) (order granting consent motion to amend pre-trial order).

Federal Rule of Civil Procedure 26(a)(2) provides,

   [A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. . . . 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[.]

Fed. R. Civ. P. 26(a)(2)(A), (B) (emphasis supplied). Furthermore, "[a] party must make these disclosures at the time and in the sequence the court orders." Fed. R. Civ. P. 26(a)(2)(D) (emphases supplied). Therefore, because Appellant did not disclose the written report by the agreed-upon deadline, she necessarily violated the Pre-Trial Order and Rule 26(a)(2).

In light of this violation, we cannot say the district court abused its discretion in excluding Dr. Voskanian as an appropriate sanction. Rule 37(c)(1) provides,

   If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed  [*13] 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). This court has explained,

   Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent's ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court's management of the case. For this reason, "we give particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1)."

Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (quoting S. States Rack & Fixture, Inc. v. Sherwin--Williams Co., 318 F.3d 592, 595 (4th Cir. 2003)) (alteration omitted); see also S. States, 318 F.3d at 592 n.2 ("The Rule 37(c) advisory committee notes emphasize that the 'automatic sanction' of exclusion 'provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence.'" (quoting Fed. R. Civ. P. 37(c) advisory committee note, 1993 Amendment) (emphasis supplied)).⁴

4   See also Campbell v. United States, 470 F. App'x 153, 156 (4th Cir. 2012)  [*14] (per curiam) ("[T]he Federal Rules impose an 'automatic sanction' of exclusion of a party's expert witness for failure to adhere to the expert witness requirements set forth in Rule 26(a)." (quoting S. States, 318 F.3d at 592 n.2)).

In Southern States, we elaborated,

   The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is "substantially justified," and (2) when the nondisclosure is "harmless."

. . .

[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence.

318 F.3d at 596-97 (emphasis supplied) (alterations omitted). The burden of establishing these factors lies  [*15] with the non-disclosing party -- in this case, Appellant. See id. at 596 ("'It is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless.'" (quoting Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001)) (alterations omitted). Appellant argues that the district court was required to weigh the Southern States factors before excluding Dr. Voskanian, it failed to do so, and even if it had done so, it would have concluded that the late disclosure was harmless.⁵ We disagree on all counts.

5   Appellant does not argue the late disclosure was "substantially justified." S. States, 318 F.3d at 597.

First of all, the district court was not required to tick through each of the Southern States factors. Southern States explains that district courts have "broad discretion" to decide harmlessness and "should" -- not "shall" -- "be guided by" the five factors. S. States, 318 F.3d at 597; see also United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) ("[T]he common meaning of 'should' suggests or recommends a course of action, while the ordinary understanding of 'shall' describes a course  [*16] of action that is mandatory."); Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011) ("[T]he fact that the district court did not expressly mention the five-factor test we adopted in Southern States is not indicative of an abuse of discretion."); Carr v. Deeds, 453 F.3d 593, 604 (4th Cir. 2006) (affirming the district court's exclusion of testimony for Rule 26(a) violation when the Southern States factors were not mentioned). Thus, the district court's failure to cite Southern States and specifically address each of the five factors listed therein does not amount to an abuse of discretion.

Second, the district court implicitly addressed some of the Southern States factors when deciding whether to exclude Dr. Voskanian as an expert witness. For example, it invoked the third factor when it discussed the disruption of the trial date and Pre-Trial scheduling order. See J.A. 558 ("[I]f we were to allow him to testify it would just turn everything that is in the pretrial order on its head."); id. at 661 ("[T]he plaintiff was just way late in naming an expert in this case. . . . [W]e have those deadlines so we can move in an orderly fashion. And the lateness with which the expert  [*17] was identified would not allow that to happen."). The district court also touched on the fourth factor, when it stated that the expert testimony would not assist a trier of fact. See id. at 558 ("Let me just say that I think the question of deliberate indifference . . . is one you can argue to the jury based on what the administrators knew and when they knew it. I don't think you need an expert on that."); id. at 661 ("[T]he expert witness' report is pretty much a brief of legal conclusions in the case, and I don't think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case."). And, as to factor five, Appellant provided no reason whatsoever for its failure to disclose the evidence in a timely manner. See Appellant's Br. 28-29 (providing arguments on the first four factors but not the fifth).

Finally, our own review of the Southern States factors demonstrates that Appellant's error was far from harmless. In addition to the reasons provided by the district court, Appellant's initial disclosure failed to provide Appellee with any concrete explanation of Dr. Voskanian's potential testimony. The disclosure was made after the  [*18] agreed-upon expert disclosure date, after discovery was closed, after Appellee filed a motion for summary judgment, and on the very date set by the court for the filing of motions to exclude experts. It is hard to accept that these events would not serve as a surprise to Appellee, or that Appellee could easily cure such a surprise. See Hoyle, 650 F.3d at 330 (finding no abuse of discretion where district court excluded expert declaration when the disclosing party notified his opponent of the declaration "not only after the close of discovery but after [the opponent] had filed its motion for summary judgment").

For these reasons, we find no abuse of discretion in the district court's exclusion of Dr. Voskanian as an expert witness.