United States District Court, W.D. Wisconsin
JAMIE R. LEIFKER and CATARI A. LEIFKER, Plaintiffs,
LEIFKER GRAIN, LLC, ROBERT J. LEIFKER, and RITA M. LEIFKER, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
case arises from the breakup of a family business. Plaintiffs
Jamie Leifker and Catari Leifker want their share of the
value of the company, Leifker Grain, LLC; defendants dispute
now move to exclude defendants' expert witnesses, Ron
Helle. Dkt. 10. Helle provided only an informal report by the
expert disclosure deadline. Plaintiffs contend that
Helle's informal report does not comply with Federal Rule
of Civil Procedure 26(a)(2)(B). They also contend that
Helle's opinions in that report are unreliable, and
therefore excludable under Federal Rule of Evidence 702. The
court will grant the motion. Although the court would forgive
certain informalities, such as Helle's failure to
disclose his compensation and prior testimony, the informal
report is too skeletal to provide a meaningful analysis of
the value of Leifker Grain. Helle's formal report, which
might include a meaningful analysis, was disclosed only on
July 21, 2016, far too late to be fair to plaintiffs.
failure to timely disclose Helle's expert opinions was
neither justified or harmless, and thus Rule 37 requires the
exclusion of his expert testimony. Plaintiffs also seek to
preclude defendants from “presenting any
expert witness testimony at trial.” Dkt. 10 (emphasis
added). Because defendants have not suggested that they have
disclosed any other expert, plaintiffs' motion will be
granted in full.
deadline for expert disclosures was set by agreement of the
parties. Plaintiffs disclosed their expert's report, as
agreed, on October 30, 2015. Defendants' expert
disclosure was due by December 15, 2015. But defendants'
only disclosure before the deadline was an informal report in
the form of a letter from Ron Helle of Honkamp Krueger &
Co, P.C., purporting to update defendants' counsel
concerning the status of the tax preparation and accounting
for Leifker Grain and affiliated entities, and “to
provide . . . a proposal for the resolution of the matters
between the member/partners of the above entities.”
Dkt. 12-3. The informal report did not expressly state
Helle's opinion on the value of Leifker Grain at the time
of plaintiffs' withdrawal. Instead, it calculated the
funds available for distribution as of some unspecified date.
(According to Helle's deposition testimony, the date was
December 12, 2015. Dkt. 9 (Helle Dep. 16:3-15)).
undisputed that the informal report lacked certain items
required by Rule 26: it did not disclose (i) all opinions
that Helle would provide during the trial, and the reasons
for them; (ii) exhibits that defendants would use in
connection with Helle's opinions; (iii) cases in which
Helle had testified as an expert; and (iv) Helle's
compensation. In the email that accompanied the informal
report, defendants' counsel explained that plaintiffs
should expect the report to be “amplified at
trial.” Dkt. 12-2.
later provided plaintiffs with two additional expert
disclosures. During Helle's deposition on June 14, 2016,
Helle provided plaintiffs' counsel with a spreadsheet
purporting to explain Helle's differences with
plaintiffs' expert. And on July 22, 2016, defendants
disclosed Helle's formal expert report.
moved to exclude Helle's testimony on August 12, 2016.
Defendants' response to plaintiffs' motion was due on
August 19, 2016. Although defendants' response was filed
late, on August 22, 2016, the court will nevertheless
26(a)(2)(B) requires a party to produce a written expert
report when the party's expert witness is “one
retained or specially employed to provide expert testimony in
the case.” Fed.R.Civ.P. 26(a)(2)(B). Helle is a
retained expert witness who must provide a written report, so
Rule 26(a)(2)(B) applies to all of Helle's reports.
Defendants failed to comply with Rule 26
26(a)(2)(B) lists six items that an expert's written
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis ...