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Leifker v. Leifker Grain LLC

United States District Court, W.D. Wisconsin

August 25, 2016

JAMIE R. LEIFKER and CATARI A. LEIFKER, Plaintiffs,
v.
LEIFKER GRAIN, LLC, ROBERT J. LEIFKER, and RITA M. LEIFKER, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         This 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 the amount.

         Plaintiffs 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.

         The 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.

         BACKGROUND

         The 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)).

         It is 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.

         Defendants 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.

         Plaintiffs 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 consider it.

         ANALYSIS

         Rule 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.

         A. Defendants failed to comply with Rule 26

         Rule 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 ...

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